U.S. GOVERNMENT PUBLISHING OFFICE

30–329 PDF WASHINGTON : 2018

S. HRG. 115–267 

HEARING TO EXAMINE S.2663, THE AGRICULTURE 

CREATES REAL EMPLOYMENT (ACRE) ACT 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

MARCH 14, 2018 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.govinfo.gov 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JOHN BARRASSO, Wyoming, Chairman 

JAMES M. INHOFE, Oklahoma 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

MIKE ROUNDS, South Dakota 

JONI ERNST, Iowa 

DAN SULLIVAN, Alaska 

RICHARD SHELBY, Alabama 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

CHRIS VAN HOLLEN, Maryland 

RICHARD M. RUSSELL, Majority Staff Director 

GABRIELLE BATKIN, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

MARCH 14, 2018 

OPENING STATEMENTS 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 1 

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware ................... 3 

WITNESSES 

Miyamoto, Doug, Director, Wyoming Department of Agriculture ....................... 5 

Prepared statement .......................................................................................... 8 

Response to an additional question from Senator Carper ............................ 11 

Responses to additional questions from Senator Merkley ............................ 12 

Yates, Ryan, Director of Congressional Relations, American Farm Bureau 

Federation ............................................................................................................. 13 

Prepared statement .......................................................................................... 15 

Responses to additional questions from Senator Merkley ............................ 24 

Lyons, Jim, Senior Fellow, Center for American Progress, Lecturer, Yale 

School of Forestry and Environmental Studies ................................................. 28 

Prepared statement .......................................................................................... 31 

ADDITIONAL MATERIAL 

Congressional Research Service; Fair Agricultural Reporting Method Act/ 

FARM (S.2421) ..................................................................................................... 145 

Congressional Research Service; Supplemental Analysis: Fair Agricultural 

Reporting Method Act/FARM (S.2421) ............................................................... 156 

Statement of National Wildlife Federation ........................................................... 160 

(1) 

HEARING TO EXAMINE S.2663, THE AGRICULTURE CREATES REAL EMPLOYMENT 

(ACRE) ACT 

WEDNESDAY, MARCH 14, 2018 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:10 a.m. in room 

406, Dirksen Senate Office Building, Hon. John Barrasso (chairman of the committee) presiding. 

Present: Senators Barrasso, Carper, Inhofe, Capito, Boozman, 

Wicker, Fischer, Rounds, Ernst, Cardin, Booker, and Van Hollen. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. Good morning. I call this hearing to order. 

Today we will hold a legislative hearing on the Agriculture Creates Real Employment, or the ACRE, Act. This is bipartisan draft 

legislation to help farmers, ranchers, and the communities they depend on get their relief from burdensome Federal regulations and 

policies. 

The Senate Environment and Public Works Committee has a 

unique role to play in the policies that impact agriculture. Just last 

month this Committee held a hearing on this important issue and 

we heard testimony from real farmers and ranchers representing 

a diverse group of States. 

The message from our witnesses’ testimony was clear: the negative impact of many Federal environmental regulations and policies 

on American farming and ranching communities is real and it 

needs to be addressed. The testimony we heard was not about the 

value of environmental regulations, but about how some Federal 

regulations can be inflexible, antiquated, duplicative, and ultimately harmful to American agriculture, a critical part of our Nation’s economy. 

The draft bill we are discussing today is designed to provide relief for hardworking people that put a shovel in the ground every 

day, working to feed this Country. I believe the ACRE Act provides 

that relief. 

My bill addresses many issues that are critical to ranchers and 

farmers. These include protecting farmers’ and ranchers’ privacy; 

eliminating duplicative environmental permitting for the use of 

pesticides; addressing unneeded and counterproductive reporting 

requirements under the Comprehensive Environmental Response, 

2 

Compensation, and Liability Act, the CERCLA Act; and doing away 

with the unfair punishment of farmers who are wrongly accused of 

baiting migratory game birds simply because they are following 

normal farming practices. 

The ACRE Act also supports an efficient permitting process at 

the U.S. Fish and Wildlife Service for predator control. The change 

will allow ranchers and farmers to better protect their livestock 

from predator attacks. 

Most of these provisions were introduced as individual bills and 

have bipartisan support. One such bill introduced by Senator 

Fischer, the Fair Agriculture Reporting Method Act, or the FARM 

Act, has 12 Democratic cosponsors, including our Ranking Member. 

This bill addresses new animal waste emission reporting requirements. 

Over the past several months, farmers and ranchers struggled to 

comply with ambiguous agency directives following an April 2017 

decision in the D.C. Circuit Court. The ruling meant up to 100,000 

farmers and ranchers, who have never been required to report 

under these laws, would suddenly be required to comply. Even 

though they wanted to comply with the ruling, the process and implications of compliance were unclear. Because both CERCLA and 

EPCRA were not written with the intent of regulating these farm 

and ranches, the requirement to report emissions from animal 

waste came without context and largely without agency guidance. 

Another bill is Senator Crapo’s S. 340, the Sensible Environmental Protection Act, which was introduced along with Democrat 

Senators Donnelly, Heitkamp, and McCaskill. This bill amends the 

Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, and 

the Clean Water Act to eliminate a duplicative permitting requirement. 

The bill prohibits the Environmental Protection Agency from requiring a permit under the National Pollutant Discharge Elimination System for a pesticide application from a point source as 

long as the application is approved under FIFRA. In addition, the 

ACRE Act also has legislation sponsored by Independent Senator 

Angus King, S. 1206, which will ensure fair treatment and licensing requirements for the export of certain echinoderms. 

Let us remember that farmers and ranchers are the original 

stewards; they understand that landscapes and watershed need to 

be healthy to support native plants, wildlife, crops, and livestock. 

They are living proof that interacting with nature can be done in 

an environmentally sound way, often leaving the resources in better condition than they were found. 

Washington policies do not always translate well in rural America. As I mentioned at our last agriculture hearing, in February, 

when I was home in Wyoming, I often hear about just how out of 

touch the environmental regulations have become. It has gotten to 

the point where ranchers and farmers are burdened by the thought 

that they will be fined thousands of dollars for simply putting a 

shovel in the ground. 

I believe we should prioritize updating and revising policies that, 

while well-intentioned, were never designed to micromanage agriculture production. This is what the ACRE Act does. 

3 

Now, before we move to our witnesses today, I would like to turn 

to Ranking Member Carper for his remarks. 

OPENING STATEMENT OF HON. THOMAS R. CARPER, 

U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator CARPER. Thanks, Mr. Chairman. I have had a chance to 

personally welcome, as you have, each of our witnesses. 

We are happy that you have joined us today. Welcome, with your 

presence and your testimony, your willingness to respond to some 

questions. I am going to have to leave here today at 11, so I will 

not be here for the entire hearing, but I very much want to make 

the next hour count, so thank you all. 

Mr. Chairman, thanks a lot for bringing us in to cover this subject that is on our minds. It is something we have talked about a 

fair amount lately in another hearing actually right here in this 

room. 

I think we all can agree on the title of the legislation that we 

are considering here today. There is no doubt that agriculture creates real employment; it does in our State, in Delaware, and I 

know it does in States that are represented in this Committee and 

the Senate. 

As I have said in some of our previous hearings here, agriculture, 

believe it or not, is a critical economic driver in Delaware. Over 40 

percent of our land is dedicated to farming and our State’s agricultural sector employs some 30,000 Delawareans, while contributing 

nearly $8 billion a year to the State’s economy. That is a lot of 

money for a little State. 

As my colleagues have heard me say a time or two before, I believe that our Country’s environmental laws and regulations have, 

by and large, served our entire Nation, including our farmers, well. 

It is possible to have clean air and clean water. It is possible to 

protect our land and conserve species and still have good jobs, plenty of jobs. It takes some work to find the right solutions to achieve 

that balance, but the hard work almost always pays off. 

One such example is the FARM Act, which is included as one of 

the sections in the ACRE Act. Its prime sponsor is here with us 

today, the Senator from Nebraska. 

But, Mr. Chairman, as you know, we worked hard to strike a 

careful compromise on that legislation. In my opinion, the FARM 

Act is an example of where we can do a good job balancing the 

needs of our farmers, while preserving access to information that 

can help protect public health. 

Unfortunately, I do not believe that the ACRE Act in its entirety 

represents the same thoughtful approach. The legislation recognizes and attempts to address concerns raised by some of our farmers. As drafted, though, I don’t believe that it adequately balances 

those interests with the interests of other natural resource-dependent industries. 

For example, Delaware has a booming wildlife tourism industry. 

I know other States represented here do too. But visitors come 

from all over the world to observe migratory birds in Delaware, including the federally listed threatened Red Knot. A 2016 U.S. Fish 

and Wildlife Service study found that more than 45 million people, 

45 million people enjoyed bird watching that year, enjoying other 

4 

wildlife watchers and contributing more than $75 billion to the 

U.S. economy. The Endangered Species Act and Migratory Bird 

Treaty Act help ensure the long-term viability of that industry, too. 

In its current form, I fear that the ACRE Act could have harmful 

implications for these important laws. 

Having said that, there may be ways to address farmers’ concerns without unintended consequences. For example, our Federal 

agencies can work with stakeholders to explore administrative options that may resolve endangered species and migratory bird concerns. Or we in this Committee may be able to reach narrower, 

truly bipartisan compromises in some of the items contained in the 

ACRE Act. I hope so. 

Further, there are stewardship success stories that this Committee and the Congress should examine that are examples of ways 

to improve collaboration and conservation outcomes in agriculture. 

For example, just last year, in the town of Blades, just south of 

Seaford, the world’s first nylon plant was built some almost 80 

years ago. 

But in the town of Blades, located in the southwestern part of 

our State, Perdue Farms worked with several communities to expand its multimillion dollar nutrient recycling investment on Delmarva. This investment and new composting operation increased 

the company’s capacity to handle surplus poultry litter and allowed 

other agricultural byproducts to be recycled. 

This actually started in my last term as Governor, Mr. Chairman. We took some State money, added to that a lot of money from 

Perdue, and created this industry in the southwestern part of our 

State, so we are not just going to spread all those nutrients on 

farm fields, but actually turn some of them into—I think it was the 

Scott lawn care people, the Scott people, they sell the stuff all over 

the Country as an organic fertilizer. But we have taken some important other steps in Delaware to help farmers become even better 

stewards of the land. 

I have mentioned before, and I will do it again here briefly today, 

again, when I served as Governor, the last year or two, we addressed high levels of agricultural runoff by forming the Nutrient 

Management Commission, farmer-led. The Commission brought together farmers and members of the environmental community to 

devise commonsense solutions, and that is basically three things: 

have farmers check the nutrient levels in their field, the ability of 

fields to absorb nutrients, phosphorous and nitrogen in particular; 

each of the farmers are going to be using the nutrients to develop 

a plan that is appropriate for their farms at non-polluting levels; 

and then provide the training necessary to implement the plans. 

Initiatives like those led by the Nutrient Management Commission and smart investments like those by Perdue in the State of 

Delaware are just two examples that this Committee can, and I 

think should, look at as we strive to protect our air, our water, 

while also creating economic opportunity in the agricultural industry. 

So, we look forward to hearing from all of our colleagues, our witnesses today to advance current and future legislation that supports our farmers and protects our environment. I look forward to 

5 

hearing from all of you. Thank you again so much for joining us 

today. Welcome. 

Senator BARRASSO. Well, thank you very much, Senator Carper. 

We are now going to turn to the witnesses, but I would like to 

first introduce Mr. Doug Miyamoto, who is joining us today and the 

first one to testify. He has served as the Director of the Wyoming 

Department of Agriculture since 2015. In his role as Director, Doug 

deals with issues that we will discuss here today on a daily basis: 

environmental reporting for Wyoming agriculture producers, predator management, liaising with Federal agencies to coordinate environmental resource issues, and many other issues that arise 

when getting our agriculture products to the end consumer. 

Doug previously served as the Executive Director of the Wyoming 

Livestock Board, the Deputy Director of the Wyoming Department 

of Agriculture, and in several other positions at the Natural Resource Conservation Service, Wyoming State Engineer’s Office, and 

the University of Wyoming. 

Doug is uniquely qualified to speak to today’s issues, both from 

his professional experience and because he received the highest 

quality education from the University of Wyoming. 

Senator CARPER. Shameless. 

[Laughter.] 

Senator CARPER. Shameless pandering. What is their mascot? 

What is their mascot? 

Senator BARRASSO. My wife has three degrees from the University of Wyoming. 

[Laughter.] 

Senator BARRASSO. I am going to get her down here and debate 

you, Mr. Ranking Member, and you don’t stand a chance. 

Senator CARPER. I would lose. 

Senator BARRASSO. He is uniquely qualified because of his incredible education, background, and degree. He studied range management for his undergraduate degree and later earned a Masters 

in rangeland ecology. He serves Wyoming well by bringing his holistic approach to his leadership at the Wyoming Department of Agriculture, and I am pleased that he would join us here today. 

In addition to Doug, we also have Mr. Ryan Yates, who is the 

Director of congressional Relations for the American Farm Bureau 

Federation, and Mr. Jim Lyons, who is a Senior Fellow at the Center for American Progress. 

So, I would like to welcome all three of you today. We would like 

to remind you that your full written testimony will be made part 

of the official hearing record, and please keep your statements to 

5 minutes so that we may have time for questions. 

Doug, please proceed. 

STATEMENT OF DOUG MIYAMOTO, DIRECTOR, WYOMING 

DEPARTMENT OF AGRICULTURE 

Mr. MIYAMOTO. Chairman Barrasso, thank you for that kind introduction. Ranking Member Carper, members of the Committee, 

thank you so much for the privilege of speaking to you today about 

the ACRE Act. 

Again, Doug Miyamoto. I am the Director of the Wyoming Department of Agriculture, and I also currently serve as the ChairVerDate Aug 31 2005 10:18 Sep 19, 2018 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\30329.TXT VERN
6 

man of the Natural Resources and Environment Committee of the 

National Association of State Departments of Agriculture. 

I am here today to talk about my support for the ACRE Act, and 

I will highlight a few of the reasons why in my testimony today. 

I am not an expert on all of the issues that are addressed by the 

ACRE Act, but there is a common theme of ensuring that the ag 

industry is subject to the correct and intended regulations for normal agricultural activities. I will emphasize individual sections of 

the ACRE Act on which the Wyoming Department of Agriculture 

and NASDA have concentrated on in recent years, as those are the 

ones with which I am most familiar. 

Importantly, and I am sure you are all aware, Section 3 of the 

ACRE Act provides the exemptions from notice requirements and 

penalties revolving around CERCLA. I don’t want to go into too 

much detail on this because I am sure you all have heard about 

the issues surrounding CERCLA, so I would just like to point out 

some specifics regarding the impact of CERCLA and its affiliated 

reporting requirements to Wyoming. 

Exempting farmers and ranchers not engaged in confined animal 

feeding operations is, in my opinion, simply the right thing to do. 

CERCLA was never intended to regulate the livestock industry, 

but, rather, to ensure cleanup of the Nation’s most contaminated 

Superfund sites to protect the public. 

I have been asked many questions from Wyoming’s producers 

about how they are to estimate emissions and how they are supposed to report those emissions in a non-confined range cattle setting. Unconfined range cattle represents the majority of the operations in the State of Wyoming, and by one suggested measure this 

continuing estimating reporting requirement would apply to all 

livestock operations involving more than 206 head of cattle. 

Obviously, this standard would incorporate the majority of the 

commercial livestock operations in Wyoming, and there is simply 

no way for the majority of Wyoming’s cattle producers to know if 

their cattle are emitting more than 100 pounds of ammonia or hydrogen sulfide in any given day. Frankly, I don’t know what to tell 

producers when they call me for technical assistance on how to 

comply with CERCLA at this point. 

The exemptions proposed in this Act will provide producers some 

protection from liability, and it also will address Federal agencies 

of jurisdiction, the EPA and the Coast Guard, and eliminate them 

wasting their limited resources on administering a program that 

does nothing to protect public health and also does not ensure that 

the Nation’s priority Superfund sites are addressed appropriately. 

Including livestock operations in the reporting and penalty provisions of CERCLA is counterproductive both for producers and for 

the agencies, and illustrates why this language has 29 bipartisan 

cosponsors. 

Specific to Wyoming, another section I really wanted to highlight 

was Section 11 of the ACRE Act, and this simply reaffirms the authorities of the Fish and Wildlife Service to issue appropriate permits to address livestock depredation. As an example, I want to 

discuss eagle management and its challenges in Wyoming. 

Wyoming is home to the largest population of Golden and Bald 

Eagles in the lower 48 States. Wyoming is also known as a destinaVerDate Aug 31 2005 10:18 Sep 19, 2018 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\30329.TXT VERN
7 

tion for wildlife viewing, and we view eagles as a valuable component of a balanced ecosystem. We do not want to decimate eagle 

populations. 

But in the instance of newborn livestock losses to eagle depredation, typically, additional newborn loss has already occurred before 

Fish and Wildlife Service can even pursue the first step of an eagle 

take permit, which is eagle harassment. It is such a slow process 

that is a rarity for the next step, which would be live capture and 

removal, to ever even be pursued. Livestock producers have more 

frequently had to resort to much more surveillance of their young 

stock; they have had to move herds completely to entirely new locations; and they have had to build and purchase lambing sheds, 

calving sheds to conduct operations indoors to protect from these 

depredations. 

We have seen a lot of sheep business leave entirely due to eagle 

depredation. In 2017 alone, Wyoming experienced 1,000 sheep and 

lamb losses to eagle depredation, according to the National Agricultural Statistic Service. This doesn’t even mention the impact of 

ravens on sage grouse, which can be addressed also by this provision within the Act. 

In conclusion, I would say, as a representative of government, I 

would assert to you that we have an obligation to ensure that our 

regulations are clear, consistent, and effective. I have made it a 

goal of the Wyoming Department of Agriculture to support commerce in the ag arena, even given the regulatory nature of our Department. One of my highest priorities is to lead the Department 

of Ag in a manner that emphasizes education before regulation and 

provides regulatory certainty for our producers. 

Again, I sincerely appreciate specifically the work of my Senator 

and Chairman Barrasso, Ranking Member Carper, and Senators 

Fischer and Donnelly on your specific work on CERCLA. That is 

very much appreciated. And I also appreciate the opportunity to 

present to the Committee today, and please know I am available 

for anything that you may need as a Committee. Thank you. 

[The prepared statement of Mr. Miyamoto follows:] 

8 


30329.013

Matthew H. Mead, G~~Nmor 

Doug Miyamoto, Dint/Ill' 

2219 Quey Ave. • CheyeMe, W'i 82002 

Phon'" {307) 777-7321 • F"" {307) m-6593 

Web: agticultute.wy.gov • Email: wdal@wyo.gov 

Tholll)omingDII--'oiAQrl<:ullute/1-IOiho,.....,.,fllld-oflll)oming~lt(Jifi:UIIule.nalunJiro....,.sand-otNIII. 

March 12,2018 

Environment and Public Works Committee 

410 Dirksen Senate Office Building 

Washington, DC 20510 

Statement of Doug Miyamoto, Director, Wyoming Department of Agriculture 

Chairman Barrasso and Senate Environment and Public Works Committee members: 

Thank you for the privilege of speaking with you today regarding the Agriculture Creates Real Employment 

(ACRE) Act. I have spent my career working on agriculture and natural resources issues with the Natural 

Resources Conservation Service, the Western Governors' Association, the Wyoming Association of 

Conservation Districts and the State of Wyoming. I currently serve as the Chairman of the Natural Resources 

and Environment Committee of the National Association of State Departments of Agriculture. Through these 

experiences over the past couple of decades, hopefully I have gained some perspective that you may find 

beneficial as it relates to governance and regulation of the agriculture industry as contemplated by the ACRE 

Act. 

Wyoming sopports the ACRE Act and I will highlight a few of the reasons why in my testimony. I am not an 

expert on every iasue addressed by the ACRE Act, but there is a common theme of ensuring that the agriculture 

industry is subject to the correct and intended regulations for normal agricultural activities. There arc issues 

addressed by the ACRE Act that if left unaddressed, have potential to cause harm to agriculture with no 

corresponding environmental benefit I will emphasize individual Sections of the ACRE Act on which the 

Wyoming Department of Agriculture and the Natural Resources Environment Committee of the National 

Association of Departments of Agriculture have concentrated in recent years as these arc the issues with which I 

have familiarity. 

Section three of the ACRE Act provides exemption from certain notice requirements, and associated penalties 

outlined by the Comprehensive Environmental Reporting, Compensation and Liability Act (CERCLA) of 1980. 

This would oodity the Environmental Protection Agency's (EPA) own exemption for farms and ranches as 

implemented in 2008 and subsequently vacated by D.C. circuit court ruling in 2017. Exempting farmers and 

ranchers not engaged in confined animal feeding operstions is simply the right thing to do. CERCLA was never 

intended to regulate the livestock industry but rather to ensure cleanup of the nation's most contaminated 

Superfund sites to protect the public. I have been asked questions from Wyoming producers about how they 

should calculate emissions for non-confined range cattle which represent the majority of cattle operations in my 

State. There are no credible resources that we as a state department of agriculture, can ethically recommend for 

estimating emissions in a non-confined range cattle setting. By one suggested measure, this continuous 

reporting requirement would apply to all livestock operations involving two hundred six (206) or more hesd of 

cattle. This standard would incorporate the vast majority of commercial livestock operations in Wyoming. 

There is simply no way for the majority of Wyoming's cattle producers to know if their cattle are emitting more 

than I 00 pounds of ammonia or hydrogen sulfide per day. Without the reporting and penalty exemption 

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9 


30329.014

Matthew H. Mead, G ... rnor 

Doug Miyamoto, DimtDr 2219 Cll1l!)' Avo. • Cheyenne, WY 82002 

Phone: (WI) m-7321 • Fax: (WI) m-6593 

Webo agD<u!ture.wy-sov • Emalh wdal@wyo.aov 

The~DiplltmentofAgtiQJIIurolo-tofhe,._enrl_of~'oegrlculluto.--enrlqualllyofllfe, 

proposed in this act, producers will have increased liability and lhc federal agencies of jurisdiction (EPA and the 

Coast Guard) will be wasting limited resources administering a program that does not protect the public and 

does not ensure that the nation's priority Superfund sites are addressed. Including livestock operations in lhc 

reporting and penalty provisions of CERCLA is counterproductive for both onr producers and onr federal 

agencies and illustrstes why this stand-alone text bas 29 bipartisan cosponsors. 

Section six of the ACRE Act amends lhc Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and lhc 

Clean Water Act (CW A) to eliminate duplicative permitting requirements and is importsnt for not only 

agricultural producers but for pesticide applicators, state govermnents and local governments. As is the case 

with CERCLA reporting and penalty requirements, this section of the ACRE Act will address a Judicial Branclt 

ruling in 2009 mandating CW A National Pollution Discbarge Elimination System (NPDES) permits for 

pesticide applications already regulated for water quality by FIFRA. In fact, FIFRA requires EPA to conduct 

extensive researclt and pre-market approval processes for pesticide products focused on environmental and 

human bealth and safety impacts. There is a rigbt way and a wrong way to regulate pesticides. After 

experiencing pesticide regulation under FIFRA alone compared to regulation under FIFRA with the additional 

requirements of the NPDES program, it is clear that the NPDES program adds nothing for enviromnental 

protection. The NPDES program was designed to regulate point source discltarges into waterways. The 

definition of point source bas been argued for decades, but regulating pesticide applications as a point source 

pollution discltarge bas proven to be burdensome and expensive. FIFRA, on the other band, was designed to 

regulate pesticide product approval and use, and includes specific analysis of the impacts of pesticide products 

on water quality and aquatic species. FIFRA represents a clear, consistent and effective method of pesticide 

regulation as the regulatioos are printed as a label for eaclt product. Label compliance alone ensures that 

environmental considerations, including water quality, have been addressed through the product approval 

process of EPA. Additionally, State Departments of Agriculture enforce labeling, distribution, storage and use 

of pesticide products. Pesticides are effectively regulated at every step from formulation to on-the-ground 

application by FIFRA. Section six of the ACRE Act maintains environmental protection while increasing 

govermnental efficiency. 

Section seven of the ACRE Act, whiclt provides Identity Protection for farmers, is also importsnt for 

Wyoming's producers. The aggregate reporting proposed by Section seven of the ACRE Act provides the 

necessary level of specificity to address environmental considerations of the EPA without compromising 

individual privacy of lhc nation's family farms and rancltes. For exantple, in Wyoming, we have experienced 

targeting of ranclters by special interest groups hoping to eliminate federal grazing permits by identifying any 

missteps in permitting or dats collection by federal agencies of jurisdiction or permittees. Providing some level 

of anonymity, while still submitting important resource dsta for enviromnental protection, but in aggregate form 

will help to protect individual fiumers and ranclters from those that intend to cause them harm. 

Section II of the ACRE Act simply reaffirms the authorities of the U.S. Fish and Wildlife Service (FWS) to 

issue appropriate permits to address livestock depredation by nuisance species. As an exantplc, I will discuss 

eagle management and its cltallenges in Wyoming. Wyoming is borne to the largest population of golden and 

bald eagles in the lower 48 states. Wyoming is also obviously a big stste, and due to these considerations, onr 

l1qw/ ()pponuDJfTIDEmp/opm:nt tmd- BOAIID MEMBEBS )liM Ginll:f. 'Oillrld I a Jamc~ Rogr:a. Dvhtrl2 • Sh2un Stmi, DiMt J a John M~ DiJirid-1 • Allloftl.au, Dllil'id J 

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10 


30329.015

Matthew H. Mead, Govmwr 

Doug Miyamoto, DimtDr 2219 C...,. Ave. • CheyeMe, WY 82002 

!'bone: (307) m-7321 • Fax: (307) m-6593 

We!x agticulture.wy.gov • Email: wdal@wyo.gov 

wildlife and livestock managers find the current regulations for eagle management cumbersome, inefficient and 

ineffective. In the instance of newborn livestock loss, typically additional newborn loss bas occUlTed before 

FWS can be informed and authorize even the first step whicll is eagle harassment. It is sucll a slow process that 

it is a rarity for the next step of eagle live trapping and removal to ever be used. Livestock producers resort to 

more surveillance of their young stock, moving of the herd to an entirely new location, or purchasing and 

building an enclosed facility that protects young animals from eagles. In many cases, we have seen livestock 

producers completely vacate the livestock business, especially sheep operations, due to predation ftom eagles. 

In 2017, Wyoming experienced 1,000 sheep and lamb losses to eagle depredation according to the National 

Agricultoral Statistics Service (NASS). Any expedience provided by FWS regarding eagle management would 

be very welcome in Wyoming. 

There are ever increasing regulatory demands on today's family farms and rancl!es. The agriculture industry is 

vital fur food production, national security, open spsces, wildlife habitat, as well as American customs and 

heritage. I am not advocating fur the complete de-regulation of the agriculture industry, but as a representative 

of government, I assert that we do have an obligation to ensure that our regulations are clear, consistent and 

effective. I have made it a goal of the Wyoming Department of Agriculture to support commerce in the 

agricultoral arena even given the regulatory nature of the Department One of my highest priorities is to lead 

the Wyoming Department of Agriculture in a manner that emphasizes education befure regulation and provides 

regulatory certainty fur producers. I believe the ACRE Act addresses many important issues facing tnday's 

farming and ranclling famiUes and will support agricultoral commerce and provide much-needed regulatory 

certainty. Again, I sincerely appreciate the opportunity to present to you today and am available fur anything 

this committee might need. 

Sincerely, 

.~/~:.-.......4" Doug Miyamoto 

Director, Wyoming Department of Agriculture 

Etpar/OpponunitylnEmploymattUJdBO.\IU) MEMBERS J-1 Gtnm-. Dilldd t • Jamc. Rap. DIJind 2 • Shawl Sun1. Dultid J • jQhn Moon; Dilllid.J • AUcm I..w.l'hslnd J 

Bry!an&n:.t,.Dmrid4 • KmrsSchteffer..D.iJtltT1 

YOUTH B0.\1U) MEMBERS Kcndlllltalxns,Saulheu< • ltidwdSclllml<u,NO<thwat • j<Mibnom,Southwat o ComaooSmoth,-
11 


30329.016

Senate Committee on Environment and Public Works 

Hearing entitled, "S. _, the Agriculture Creates Real Employment (ACRE) Act" 

March 14, 2018 

Questions for the Record for Doug Miyamoto 

Ranking Member Carper: 

1. President Trump's fiscal year 2019 budget request includes significant 

cuts to USDA operations and Farm Bill programs. The President's budget 

proposes to cut the Department of Agriculture's budget by 16 percent. on top of 

cutting Farm Bill programs by $260 billion. If these cuts were enacted, I fear they 

would undermine essential programs that support farmers and ranchers and 

eliminate important technical assistance provided to states by USDA. In fact, the 

American Farm Bureau already testified that the proposed budget cuts would be 

harmful at a hearing we held last month. 

Would you please comment on the impact the President's budget might have on 

farmers and conservation activities? How should Congress react to these 

proposed cuts? 

Full funding is necessary for delivery of USDA's conservation programs. USDA-NRCS is 

a crucial partner to states and private partners in implementing voluntary, incentivebased conservation programming. Proposed funding cuts could impact farmers' on the 

ground conservation efforts. As a member of the National Association of State 

Departments of Agriculture's leadership, I would refer you to the association's FY18 

appropriations priorities which include: 

• Protect mandatory Environmental Quality Incentives Program (EQIP) funding at 

$1.75 billion 

• Ensure Conservation Stewardship Program (CSP) availability at 10 million acres 

• Protect mandatory Regional Conservation Partnership Program (RCPP) funding 

at $110 million plus eligible funds from EQIP, CSP and ACEP 

• Protect mandatory Agriculture Conservation Easement Program (ACEP) at $250 

million 

• Provide the maximum funding available for Conservation Technical Assistance 

I urge Congress to maintain support for these programs. 
12 


30329.017

Senator Merkley: 

2. One of the proposed changes of the ACRE Act is exempting 

agricultural operations from reporting air emissions under CERCLA. In 

testimony submitted to the Committee. you said that you supported 

exempting those operations that were not CAFOs. Do you believe that 

there is a risk of hydrogen sulfide and ammonia emissions from larger 

operations. such as CAFOs? Please provide information on emissions 

and any reports of community concerns on public health or air quality 

from CAFOs in your state. 

I support the exemptions for agriculture operations created by the Senate ACRE 

Act. This section of the bill, included in the FY18 omnibus, reaffirms 

Congressional intent that farmers and ranchers were never meant to be subject 

to CERCLA reporting. EPA has not been able to create animal emissions 

reporting standards because the data and collection of emissions has not 

warranted creation of standards. I do not believe there is a risk of hydrogen 

sulfide and ammonia emissions from large animal operations which may explain 

why we, at least at the Wyoming Department of Agriculture, do not have any 

reports of community concerns on public health relating to livestock operations of 

any kind. 

3. The ACRE Act would prohibit the EPA from disclosing any 

locational information from livestock operations. This would create an 

inconsistency from how EPA handles data from all other industries under 

the Clean Water Act and creates a potential barrier for sharing discharge 

information from neighboring communities directly impacted by the 

pollution. Please describe how communities that may be impacted by 

farms that are discharging into the environment can be kept informed if 

EPA or a state agency is not able to share locational information of these 

facilities from its neighbors. 

The U.S. Court of Appeals for the 8th Circuit ruled in 2016 that personal farm data 

cannot be disclosed in FOIA requests. Farm data and locational information often 

includes the addresses and contact information of private residences since most families 

that farm or ranch as their occupation also live at their place of business. As such, EPA 

and state environmental agencies must permit and monitor animal feeding operations to 

ensure they are in compliance with state and federal laws. These rules and regulations 

monitor any potential community impacts. This information exchange sufficiently helps 

producers manage their farms in an environmentally sound way and be in compliance 

with any rules and regulations. 
13 

Senator BARRASSO. Well, thank you very much for your very 

thoughtful and thorough testimony. Appreciate it. 

Mr. YATES. 

STATEMENT OF RYAN YATES, DIRECTOR OF CONGRESSIONAL 

RELATIONS, AMERICAN FARM BUREAU FEDERATION 

Mr. YATES. Chairman Barrasso, Ranking Member Carper, and 

members of the Committee, thank you for calling this important 

hearing on the ACRE Act and inviting me to testify on behalf of 

the American Farm Bureau Federation. Farm Bureau commends 

you for your leadership in advancing legislation which addresses a 

range of environmental policy issues which impose real costs and 

substantive burdens to our members. I will highlight our comments 

and support section by section. 

Farmers and ranchers support the solution provided in Section 

3 of the ACRE Act, which will protect their businesses from financial strain and burden of unnecessary reporting requirements. 

CERCLA was enacted to provide for cleanup of the worst industrial 

chemical and toxic waste dumps and spills. 

CERCLA has two primary purposes: to give the Federal Government tools necessary for prompt response to problems resulting 

from hazardous waste disposal, and to hold polluters financially responsible for cleanup. Unfortunately, in April 2017, the D.C. Circuit Court of Appeals issued a decision vacating EPA’s 2008 exemption for agricultural operations. I would like to point out the public 

safety concerns caused by these reporting requirements. 

Up to nearly 200,000 farms may have to report to the National 

Response Center, overwhelming that system and drawing resources 

from actual emergencies. Additionally, there are national security 

implications. By requiring reporting, we will be creating a roadmap 

for nearly our entire animal agriculture production system. Obviously, this creates an opportunity for mischief for those wanting to 

harm our very safe and abundant food supply. Last, requiring individual farmers and ranchers to disclose personal home addresses 

along with their farm information creates an opportunity for activists to harass farmers and ranchers where they live and work. 

Section 5 would protect farmers from Federal penalties levied 

under the Migratory Bird Treaty Act if they are following best 

practices provided by their State Cooperative Extension Service. 

AFBF supports the Hunter and Farmer Protection Act, which 

would allow each State’s Cooperative Extension Service to clarify 

the difference between what constitutes baiting and normal agricultural practices. 

Section 6 of the ACRE Act is a proposal that has long enjoyed 

bipartisan support, and we strongly support its adoption. It simply 

states that when a pesticide is lawfully applied under FIFRA, it is 

not also regulated under the Clean Water Act. It has been the longstanding view of the law until it was thrown into question by decisions in the Ninth Circuit. We believe it is a sensible approach that 

reflects the will of Congress and prevents overregulation. 

AFBF supports Section 7, the Farmer Identity Protection Act, 

which would prohibit the EPA or an EPA contractor from disclosing 

information collected under Clean Water Act requirements from 

livestock operations. AFBF opposes the disclosure of personal and/ 

14 

or business information by an organization, business, or government agency about individual farmers and ranchers. The release of 

any information should only be allowed under specific written or 

electronic authorization of the individual or the private business 

entity. 

Section 8 would prohibit the EPA from enforcement of the Clean 

Water Act for agricultural operations through aerial surveillance 

without the written expressed consent of the owner-operator of the 

land. Farm Bureau supports the use of unmanned aircraft systems, 

or UAS, as another tool for farmers and ranchers to use in managing their crops and livestock, and making important business decisions. While Farm Bureau supports this technology and the potential opportunities it offers for farmers and ranchers, we are also 

concerned about the data collected from UAS and the privacy and 

security of the data. It is critical that data collected via UAS remain under the ownership and control of the farmer and is not 

available to government agencies or others without the farmer’s 

permission. 

Section 9 would provide immediate relief to the aquaculture industry by reinstating the force and effect of the U.S. Fish and 

Wildlife Services’ statutory depredation order for the double-crested 

cormorant with respect to freshwater aquaculture facilities. In response to a legal challenge against the Service, the U.S. District 

Court for the District of Columbia remanded the 2014 Aquaculture 

Depredation Order for the cormorant. The cormorant is a large 

water bird that feeds mainly on fish. As you can imagine, commercial fish ponds that are stocked at high densities make them highly 

susceptible to bird predation particularly by the cormorant. Predator control is vital to the success of American aquaculture. 

Thank you, Mr. Chairman. We look forward to continuing to 

work with the Committee in securing enactment of this critically 

important legislation. I would be happy to answer any questions 

that you or the Committee may have. Thank you. 

[The prepared statement of Mr. Yates follows:] 

15 


30329.018

Statement •• of the 

American Farm Bureau Federation 

TO THE UNITED STATES SENATE 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

S. __ , the Agriculture Creates Real Employment (ACRE) Act 

March 12, 2018 

Presented By: 

Ryan Yates 

Director of Congressional Relations 

American Farm Bureau Federation 
16 


30329.019

Chairman Barrasso, Ranking Member Carper, and Members of the Committee, my name is Ryan 

Yates and I am Director of Congressional Relations at the American Farm Bureau Federation. I 

am pleased to be here today to offer testimony on the Agriculture Creates Real Employment 

(ACRE) Act. This legislation addresses several issues of importance to farmers and ranchers 

across the country. 

On behalf of the nearly 6 million Farm Bureau member families across the United States, I 

commend your leadership in providing oversight offederal environmental regulations and 

policies and appreciate the Committee's desire to understand the "real-world effects" of federal 

regulations. Such a review is timely and, in our judgment, will permit policymakers to gain a 

greater appreciation for the impact federal regulations have on fanners and ranchers, how 

farmers and ranchers must respond to the demands of regulations and how those regulations 

affect agricultural producers in their efforts to produce food, fiber and fuel. 

Farmers and ranchers today face an increasing array of regulatory demands and requirements. 

Federal regulations- and the state and local regulations that often flow from them- permeate 

virtually every phase of agricultural production. The Agriculture Creates Real Employment 

(ACRE) Act addresses a range of environmental policy issues which impose real costs and 

substantive burdens to our members. 

AFBF policy speaks to both the regulatory process and specific regulations. As a general 

observation, our members believe that federal regulations should respect property rights; be 

based on sound scientific data; be flexible enough to recognize varying local conditions; be 

transparent; and take into account the costs and benefits associated with public and private sector 

compliance prior to being promulgated. 

Section 3. Exemption from Certain Notice Requirements and Penalties 

The Comprehensive Environmental Response. Compensation, and Liability Act (CERCLA) was 

enacted to provide for cleanup of the worst industrial chemical and toxic waste dumps and spills. 

such as oil spills and chemical tank explosions. CERCLA has two primary purposes: to give the 

federal government tools necessary for prompt response to problems resulting from hazardous 

waste disposal into water and soil, and to hold polluters financially responsible for cleanup. The 

Emergency Planning and Community Right-to-Know Act (EPCRA) requires parties that emit 

hazardous chemicals to submit reports to their local emergency planning offices, thus allowing 

local communities to better plan for chemical emergencies. 

In 2008, EPA finalized a rule to exempt all agricultural operations from CERCLA reporting and 

small operations from EPCRA reporting requirements, recognizing that low-level continuous 

emissions of ammonia and hydrogen sulfide from livestock are not "releases" that Congress 

intended to regulate. When the rule was challenged in 2009, the Obama administration spent 

eight years defending this Bush-era regulation. In defending the lawsuit, the Obama EPA argued 

that CERCLA and EPCRA language does not explicitly exempt farms because Congress never 
17 


30329.020

believed that the continuous emissions of agricultural operations would fall into the realm of 

regulation. However. in April2017, the D.C. Circuit Court of Appeals issued a decision vacating 

EPA's 2008 exemption, concluding that the exemption violated the statutes. 

Not only does this court decision have the potential to require nearly 200,000 farms and ranches 

to report their low-level emissions, but it will also unnecessarily jeopardize our nation's 

environmental and public health. Currently. Hazardous Substance release reports are taken by the 

National Response Center (NRC), run by the Coast Guard. This department has averaged 28,351 

reports per year over the last eight years. When farms from across the nation must suddenly 

report their low-level emissions. these reports from over 200.000 agricultural operations will 

inundate the NRC. This increase of over four times the average annual amount, in the weeks 

after the court's decision goes into effect. could prevent the Coast Guard from responding to 

actual hazardous waste emergencies, entirely defeating the primary purposes of CERCLA. 

Importantly. emergency responders do not see value in reporting from farms. and the influx of 

agricultural reports could compromise emergency response coordination. The National 

Association of SARA Title Ill Program Officials, which represents state and local emergency 

response commissions, notes the continuous reports "are of no value to [Local Emergency 

Planning Committees] and first responders" and that the reports "are generally ignored because 

they do not relate to any particular event." In addition. the Coast Guard and EPA have stated that 

these emission reports will serve no useful purpose in terms of the crisis and emergency response 

function ofCERCLA and EPCRA. The massive volume of reports will impede the efforts ofthe 

Coast Guard, EPA, and state and local emergency responders. CERCLA and EPCRA were 

intended to focus on significant events like spills or explosions. not routine emissions from farms 

and ranches. 

Following the D.C. Circuit Court of Appeals decision. the EPA's options are limited. EPA has 

provided reporting guidance to farmers and ranchers. but there is no scientific consensus on how 

to measure air emissions on individual farms, requiring many farmers to spend resources on 

consultants. These requirements not only require reporting by larger farms, but also small 

pastured cow-calffanns, ranchers grazing on federal lands and horse farms. 

The court recently granted a stay for three months, providing additional time for the agency to 

further develop administrative guidance and streamlined reporting forms. but buying time does 

not change the ultimate outcome: thousands of farms and ranches across the nation will be forced 

to report their daily emissions to the EPA or face liability of up to nearly $54,000 per day. 

The ACRE Act will ensure that the EPA is not required to implement this overly burdensome 

court decision and expose hundreds of thousands of farms and ranches to the threat of activist 

lawsuits while potentially creating a database of sensitive private farmer information. The whole 

point of activists' dogged effort to require reporting is to create a federal database that makes it 

easier to harass farmers and ranchers. 
18 


30329.021

Farmers and ranchers support the solution provided in Section 3 of the ACRE Act, which will 

protect their privacy and their businesses from the financial strain and burden of these 

unnecessary reporting requirements on ordinary activities on their land. 

Section 5- Baiting of Migratory Game Birds 

Section 5 would protect farmers from federal penalties levied under the Migratory Bird Treaty 

Act if they are following best practices provided by their state Cooperative Extension Office. 

Under the Migratory Bird Trea£v Act, the government has the authority to regulate hunting 

seasons for some protected species and prohibit certain actions in the interest of preserving those 

species. 

The U.S. Fish and Wildlife Service has stated that ratoon crops which have been rolled qualify as 

baited fields, making them out-of-bounds for hunters, despite the fact that local Cooperative 

Extension Offices advised farmers to roll their fields to help return nutrients to the soil. 

Inadvertent baiting of a field can produce a fine of up to $15.000 or prohibit hunting on the land. 

When a government regulation affects the ability of a farmer to use his or her land. that 

regulatory impact "hits home·•- not just figuratively but literally. That happens because the farm 

often is home and may have been passed down in the family for generations. If the regulatory 

demand is unreasonable or inscrutable, it can be frustrating. If it takes away an important crop 

protection tool for speculative or even arguable reasons, it can harm productivity or yield. 

AFBF supports Section 5, the Hunter and Farmer Protection Act. This section would allow each 

state's Cooperative Extension Service to weigh in on the difference between what constitutes 

baiting and normal agricultural practices. 

Section 6. Use of Authorized Pesticides; Discharges of Pesticides; Report 

For nearly three decades, the application of pesticides to water was regulated under the Federal 

Insecticide, Fungicide, and Rodenticide Act (FIFRA), not the Clean Water Act (CWA). A series 

of lawsuits, however, yielded a trio of 9th Circuit Court of Appeals decisions holding that 

pesticide applications also needed CWA National Pollutant Discharge Elimination System 

(NPDES) permits. To clear up the confusion, EPA promulgated a final regulation to clearly 

exempt certain applications of aquatic pesticides from the CW A ·s NPDES program. EPA's final 

rule was challenged and overturned in National Cotton Council v. EPA. This decision exposed 

farmers, ranchers, pesticide applicators and states to CW A liability by subjecting them to the 

CWA 's NPDES permitting program. 

The general permits are now in place for over 360,000 new permittees brought within the 

purview of EPA's NPDES program. This program carries significant regulatory and 

administrative burdens for states and the regulated community beyond merely developing and 

then issuing permits. It goes without saying that a meaningful environmental regulatory program 
19 


30329.022

is more than a paper exercise. It is not just a permit. EPA and states must provide technical and 

compliance assistance. monitoring and, as needed. enforcement. These new permittees do not 

bring with them additional federal or state funding. 

There are three fundamental questions each member should ask. First, are FIFRA and CW ;\ 

regulations duplicative? Second, in light of FIFRA ·s rigorous scientific process for labeling and 

permitting the sale of pesticides, arc duplicative permits the appropriate way to manage pesticide 

applications in or near water? And third. is this costly duplication necessary or docs it provide 

any additional environmental benefit? Your answer to all three questions should be NO. Never. 

in more than 40 years of FIFRA or the CW A. has the federal government required a permit to 

apply pesticides for control of pests such as mosquitoes, forest canopy insects, algae. or invasive 

aquatic weeds and animals. such as Zebra mussels, when pesticides are properly applied "to, 

over or near'' waters of the U.S. 

Lastly. state water quality agencies repeatedly have testified that these permits provide no 

additional environmental benefits, that they simply duplicate other regulations and impose an 

unwarranted resource burden on their budgets. 

Section 7. Farmer Identity Protection 

The American Farm Bureau Federation opposes the disclosure of personal and/or business 

information by an organization, business or government agency about individual farmers and 

ranchers. The release of any information should only be allowed by specific written or electronic 

authorization of the individual. or any private business entity. Farmers and ranchers have a 

strong privacy interest in their personal information. including their home address, even when 

they live and work on the fann. 

Farm families usually live on the farm and federal information disclosures could facilitate 

unwanted contact and harassment of farmers and ranchers. The fact that government agencies 

may have that information and even store it on the Internet does not eliminate the individual's 

privacy interest. 

AFBF supports Section 7. the Farmer Identity Protection Act. which would prohibit the EPA or 

an EPA contractor from disclosing information collected under CWA requirements from 

livestock operations. Relevant information includes names. telephone numbers, email addresses. 

physical addresses. global positioning system coordinates, and other information related to the 

location of the owner. operator, livestock or employees. 

Section 8. Privacy of Agricultural Producers 

Farm Bureau supports the use of unmanned aircraft systems (UAS) as another tool for farmers 

and ranchers to use in managing their crops and livestock and making important business 

decisions. A farmer faces daily challenges that can affect the farmer's yield. environmental 
20 


30329.023

conditions on the farmer's property and, ultimately, the economic viability of the farm. Farmers 

rely on accurate data to make these decisions, and the use of UAS adds a valuable and accurate 

tool for the farmer in making optimal decisions to maximize productivity. 

America's farmers and ranchers embrace technology that allows their farming businesses to be 

more efficient, economical and environmentally friendly. American agriculture continues to 

evolve. Farmers and ranchers usc precision-agriculture techniques to determine the amount of 

fertilizer they need to purchase and apply to the field, the amount of water needed to sustain the 

crop, and the amount and type of herbicides or pesticides they may need to apply. These are only 

a few examples of the business decisions a farmer makes on a daily basis to achieve optimal 

yield, lower environmental impact and maximize profits. 

UAS provides detailed scouting information on weed emergence, insect infestations and 

potential nutrient shortages. This valuable information allows the farmer to catch threats before 

they develop into significant and catastrophic problems. 

The imagery from UAS also allows the farmer to spot-treat sections of fields as opposed to 

watering or spraying the entire field. Images from UAS allow the farmer to identify the specific 

location where a specific treatment- be it fertilizer, water, pesticides or herbicides- is 

necessary. By spot-treating threats to the crop. the farmer lowers not only the cost of treatment 

but also, potentially, the environmental impact by minimizing application. 

While Farm Bureau supports this new technology and the potential opportunities it offers for 

farmers and ranchers. Farm Bureau is also concerned about the data collected from UAS and the 

privacy and security of that data. 

Even if an individual operator follows all the applicable rules, regulations, and best management 

practices in his or her farming operation, there is still concern that regulatory agencies or one of 

the numerous environmental organizations that unnecessarily target agriculture might gain access 

to individual farm data through subpoenas. While a farmer's pesticide or biotech seed usage may 

be a necessary, appropriate and accepted practice, it also may be politically unpopular with 

certain groups. 

The biggest fear that farmers face in data collection is government accessing their data and using 

it against them for regulatory action. 

Questions abound within the agricultural community about "who owns and controls the data." If 

a farmer contracts with a company authorized to fly UAS, does the farmer own all the data from 

that UAS or is it shared by both the contractor and the fanner? In the case of a farm on rented 

ground, does the tenant or the landlord own the data? 
21 


30329.024

Farm Bureau supports the use of UAS and believes it will be an important addition to farmers' 

management toolbox, but it is critical that the data remain under the ownership and control of the 

fanner and is not available to government agencies or others without the farmer's permission. 

Section 9. Regulations relating to the taking of Double-Breasted Cormorants 

In response to a legal challenge. led by Public Employees for Environmental Responsibility, 

against the FWS for its five-year extension of two depredation orders that had been in place since 

1998, the U.S. District Court for the District of Columbia remanded the 2014 Aquaculture 

Depredation Order (2014 Order) for the double-crested cormorant. The Court directed the FWS 

to expand its consideration of alternatives that had been included in its prior National 

Environmental Policy Act review. 

In its subsequent May 2016 opinion. the Court noted the opportunity for FWS to issue individual 

permits and appeared to rule in favor of vacatur because of the availability of individual permits. 

The Court wrote: 

" ... if the Court were to vacate these orders, the parties agree that alternative routes 

remain available for the management of connorant populations, for example, through 

individual predation permits under the Migratory Bird Treaty Act. .. According to FWS, 

'migratory bird penn its could be requested and issued for the reduction of cormorant 

impacts on sensitive species or their habitats (vegetation).' While the Court understands 

the limitations of relying on state management plans and individual permits ... particularly 

in the long tenn, the takeaway remains that any seriously detrimental impact of I the 

Court"s decision] in the short tenn could be miti2.ated." (Emphasize added). 

In explaining his decision, the judge concluded that the FWS had" ... not made a compelling case 

that rescission [of the depredation order] will cause significant consequences to aquaculture 

because the forecasted harms are imprecise or speculative:· In effect. the FWS failed to provide 

the Court with details of how seriously fish farmers would be impacted without the ability to 

control cormorants. 

The double-crested cormorant is a large water bird that feeds mainly on fish. Commercial fish 

ponds arc stocked at high densities ranging from 2,000 to 60.000 catfish per acre and 50,000 to 

almost 200,000 bait fish per acre. These production practices make fish farms highly susceptible 

to bird predation, particularly by connorants. A study conducted prior to the 2014 Order 

estimated cormorant related production losses on catfish fanns in the Mississippi Delta region at 

18 million to 20 million fingerlings per winter. A 1996 USDA survey of catfish producers 

indicated that birds were responsible for 3 7% of catfish losses. Cormorants cause additional 

economic hardship by spreading fish parasites. 

Section 9 would provide immediate relief to the aquaculture industry by reinstating the force and 

effect of the U.S. Fish and Wildlife Service's statutory depredation order for double-breasted 
22 


30329.025

cormorants with respect to freshwater aquaculture facilities in Alabama, Arkansas, Florida, 

Georgia, Kentucky, Louisiana, Minnesota, Mississippi, North Carolina. Oklahoma, South 

Carolina, Tennessee, and Texas. 

Section 10. Applicability of Spill Prevention, Control, and Counter Measure Rule 

Section 10 includes language from Senator Fischer's S. 1207, the Fanners Undertake 

Environmental Land Stewardship (FUELS) Act. The bill would amend the Water Resources 

Refonn and Development Act of 2014 to provide a limited exemption to the EPA's Spill 

Prevention. Containment, and Control rule for farms with l 0,000 gallons or less of fuel storage. 

The bill also provides for a volume increase for self-certification under the rule (from 22,000 to 

42,000 gallons) for farms with no spill history and an established spill response process. 

Certification for fanns with greater than 42,000 gallons of storage and/or a reported discharge 

history would need to be completed by a professional engineer. 

Farm Bureau supports clearly defined requirements for on-fann, aboveground fueling facilities. 

Farmers should be assured of regulatory certainty before investing in corrective measures. We 

support revising Environmental Protection Agency (EPA) rules regarding aboveground fuel 

storage tanks to exempt farm fuel (diesel and gasoline) tanks from EPA mandates and allowing 

farmers, regardless of their on-farm fuel storage capacity, to complete and self-certify a spill 

control plan. In addition, we oppose the inclusion of any materials beyond petroleum products 

into the Spill Prevention, Control and Countenneasure (SPCC) regulations. 

Section 11. Predatory and other Wild Animals 

Section 11 reaffirms the respective authorities of the U.S Fish and Wildlife Service (FWS) and 

the U.S. Department of Agriculture's Animal and Plant Health Inspection Service's (APHIS) 

Wildlife Services division to issue appropriate permits in instances of depredation for nuisance 

species, birds, and other predators. The language directs the appropriate authority to use the most 

expeditious permitting process. including through collaboration between FWS and APHIS 

authorities. 

Controlling wildlife damage is a critical factor in maintaining the success of American 

agriculture. AFBF supports property owners' having the right to protect crops and livestock from 

protected wildlife and predators. We support federal effons to create a consistent process for 

livestock producers to follow when obtaining federal depredation pem1its. The process should 

include the ability for producers to work with local agencies to complete and submit all needed 

paperwork. 

Additionally, increased funding is required for USDA-APHIS Wildlife Services for the agency's 

continued legal depredation efTorts and roost dispersal of avian species that affect aquaculture 

production. This funding shall be utilized to efficiently manage. mitigate and further assist 

aquaculture producers in their efforts to deter avian depredation at aquaculture production 
23 


30329.026

facilities. This shall include adequate staffing and the use of efficient and proven dispersal and 

depredation practices. 

Conclusion 

We at the American Farm Bureau Federation appreciate the Committee's willingness to listen to 

our concerns. The need for continued oversight and reform of the nation's environmental 

regulatory framework cannot be overstated. Farmers, ranchers, and small businesses rely on 

regulatory certainty and the Constitutional protection of private property rights to make sound 

business decisions. We look forward to continuing to work with you and the Senate Environment 

and Public Works Committee in pursuing solutions to these important 
24 


30329.027

Senate Committee on Environment and Public Works 

Hearing entitled, "S. _, tlte Agriculture Creates Real Employme11t (ACRE) Act" 

March 14,2018 

Questions for the Record for Ryan Yates 

Senator Merkley: 

1. There are many communities that have reported poor air quality from pollution generated 

at neighboring farms. In testimony submitted to the Committee, you said that there was 

no useful purpose in agricultural operations reporting emissions. Does the American 

Farm Bureau believe that there is no risk to the community at large from emissions from 

larger agricultural operations, such as large CAFOs? 

Many people outside of agriculture and the livestock industry have concerns about the 

environmental and health impacts of livestock operations. Some have gone so far as to demonize 

livestock operations, calling them factory farms and industrial livestock production. In fact, 

many of these livestock farms continue to be family owned and operated. Contrary to antilivestock rhetoric, this nation's livestock industry is proficient at producing safe and abundant 

food while protecting our natural resources. The industry is highly regulated and farmers often 

surpass requirements when fulfilling their roles as caretakers of the environment and good 

citizens of their communities. 

It is often overlooked, but a majority of farmers who operate CAFOs are involved in a familybased business, are highly educated college graduates, community leaders, and experts in science 

and technology. Most are trained in humane animal husbandry and environmental sciences and 

spend great amounts of time, money and other resources ensuring that their operations do not 

harm the environment. More good news is that the efficiency of livestock production in the 

United States ensures Americans can purchase beef, pork, eggs. turkey, chicken and milk that is 

safe, nutritious and affordable. Providing meat to the United States and international markets 

also supports hundreds of thousands ofjobs on farms, in rural communities, and in value-added 

food chain facilities nationwide. 

If Americans are concerned about the environmental impacts of agricultural production and the 

safety of their foods and beverages. the nation would be well-served to preserve food production 

here at home. The United States has the best environmental and food safety protocols in the 

world. Recent concerns about the safety of imported foods point out the simple fact that if 

regulations make it so hard and cost-prohibitive for America's farmers and ranchers to stay in 

business, then the U.S. will be forced to import a larger portion of its food supply. The imported 

food supply would come from nations which have significantly fewer environmental, food safety 

and labor safeguards. Simply put, any misguided effort to stamp out problems here at home that 

are either marginal or do not exist, would create larger problems that arc arguably more serious. 

The majority of farmers and ranchers live on or near their livestock operations. This means they 

and their families breathe the same air as their neighbors. Most livestock farms are proactively 

instituting practices to reduce air quality concerns for the welfare of their workers, neighbors, 

animals, and their own families. 
25 


30329.028

Farmers and ranchers understand their roles in improving and maintaining the health and safety 

of the nations' environmental resources. Farmers are sensitive to the environment because they 

own and manage two-thirds of the nation's land. They are doing their part to promote the 

principles of environmental stewardship by being good caretakers of the nation's soil, air and 

water resources. But the cost of this stewardship is not cheap. Meeting the demand for food, 

feed and fuel as well as society's demands for improved environment quality requires farmers 

and ranchers to balance, and often individually bear, the cost of achieving many competing goals 

and objectives. 

Agriculture's impacts on the environment are closely intertwined with countless human activities 

that yield a higher quality of life for all Americans. The current production rates for U.S. 

farmers and ranchers is unprecedented. This productivity allows U.S. farmers and ranchers to 

meet the demands of the nation's growing population as well as growing world populations. On 

top of this unprecedented productivity, there is little doubt that farmers and ranchers have made 

great strides in improving our environment over the last three decades. By nearly every measure, 

the nation's environment and natural resources are in better condition than any other time in 

recent history. 

A University of Georgia study looked at particulate matter levels in the air I 00 feet away from 

chicken house ventilation fans. They found that levels were statistically indistinguishable from 

ambient air, and, in fact, lower than typical particulate levels in urban areas. Another study 

found ammonia levels at typical setbacks do not exceed the Occupational Safety and Health 

Administration and Environmental Protection Agency (EPA) odor detection thresholds. 

No evidence indicates that farms and ranches pose any specific health risk to people in general. 

Livestock and poultry farms have been operated for more than 50 years in many areas by 

thousands of farm families. The tact that these families have not experienced any significant 

health issues attributable to these operations would suggest that livestock and poultry farming is 

no more of a health risk than any other type offarming. 

Farm Bureau recognizes that improvements can always be made to environmental stewardship 

and our members strive to be the best neighbors as possible. Reality must also be considered; 

farming is a dirty job that requires the careful management of many factors including odors. 

When it comes to clean air, Farm Bureau policy supports the following principles: 

A balanced and science-based implementation of the Clean Air Act (CAA) is of the utmost 

concern to farmers and ranchers. 

• Sound Science- To protect public health, all CAA rules and incentive-based programs 

must be based on peer-reviewed, science-based, reliable and accurate information. 

• Transparency- The EPA should establish and maintain a deliberate, consistent and 

transparent decision-making process to inform the public, including farmers, of any 

criteria used to regulate air emissions. 

• Workability- The CAA must be administered in a practical and realistic way to establish 

workable and reasonable rules and incentive-based programs. EPA should always 
26 


30329.029

consider incentive-based programs, before regulation, to achieve emission reduction. 

Compliance costs associated with meeting any imposed standards should be the 

responsibility of the federal government. 

• Practicability- Farm Bureau will work with industry groups and the appropriate agencies 

to ensure common sense implementation and economic achievability of any new rule and 

incentive-based programs. 

• Cost Benefit Analysis/Affordabi!ity Benefits should significantly exceed the cost of any 

regulation or program and affordability should be a major consideration. 

• Congressional Oversight- Congress should review the effects ofCAA on agricultural 

operations and ensure workable and reasonable CAA rules and programs. 

• Exempting air emissions from manure from emergency response reporting under 

Comprehensive Environmental Recovery, Compensation and Liability Act (CERCLA) 

and Emergency Planning and Community Right to Know Act. 

2. In modifying the description of activities that constitute baiting, the ACRE Aet would 

broaden the instances under which an agricultural producer would be able hunt migratory 

game birds. While crop protection is important for all farmers, the bill creates an 

exemption to the Migratory Bird Treaty Act that opens very large parcels of land to 

hunting. In your testimony, you said that productivity or yield could be harmed if farmers 

do not have this ''crop protection tool.'' Please provide data on recent productivity and 

yield loss to farmers over the past 3 years, nationally and in Oregon, as a result of not 

being able to hunt these migratory game birds. 

While available data on this subject predates your request, research has identified significant 

losses to crops and aquaculture from wildlife including migratory birds. Farm Bureau is 

concerned about the recent impacts to commercial fisheries by the double-crested cormorant. As 

stated in my testimony, the double-crested cormorant is a large water bird that feeds mainly on 

fish. Commercial fish ponds are stocked at high densities ranging from 2,000 to 60,000 catfish 

per acre and 50,000 to almost 200,000 bait fish per acre. These production practices make fish 

farms highly susceptible to bird predation, particularly by cormorants. A study conducted prior 

to the 2014 Order estimated cormorant related production losses on catfish farms in the 

Mississippi Delta region at 18 million to 20 million fingerlings per winter. A 1996 USDA survey 

of catfish producers indicated that birds were responsible for 37 percent of catfish losses. 

Cormorants cause additional economic hardship by spreading fish parasites. 

Regarding cormorants and catfish aquaculture. USDA Wildlife Services data (via National 

Agricultural Statistics Service) states: 

Commercial catfish production is one of the largest aquaculture industries in North 

America with much ofthis production occurring in the southeastern U.S. During the 

winter months, more than 60,000 cormorants can frequent these primary aquacultureproducing regions on any given day. USDA, WS National Wildlife Research Center 

(NWRC) scientists have documented that on average 16 cormorants per day feeding on a 

15 acre pond over the winter can result in a 22 percent decline in the weight of harvested 
27 


30329.030

ca(fish Such predation impacts due to cormorants in western Mississippi alone were 

estimated at $5.6 million $12.0 million annually. To date, NWRC research indicates 

that the most effective tools for cormorant control have been combining non-lethal 

harassment and lethal shooting on the fish farm, and at cormorant night roosts. These 

activities are conducted primarily by producers and USDA's Wildlife Services 

program. These programs have been successful in reducing cormorant foraging on 

nearby farms, and potentially save individual farmers and the industry hundreds of 

thousands of dollars annually. 

The United States Government Accountability Office wrote a report entitled, Wildlife Services 

Program: Information on Activities to Manage Wildlife Damage 

ln~•'>L.gi!~'•_g'Jy/]i?JQ•QJJ~l'i·liJ\(!:.V.~::.L.i~) in 2001 and reported: 

"Fish-eating birds (e.g., cormorants, herons, egrets, and pelicans) can cause 

severe damage at aquaculture farms, eating ca{fish, crawfish, salmon, bass, 

trout, and ornamental fish. According to a USDA National Agricultural 

Statistics Service (NASS) survey of ca!fish producers jiwn 15 states, 69 

percent reported some wildlife-caused losses. H'ith a financial loss of$12.5 

million to wildlife predation in 1996." 

Additionally, USDA Wildlife Services writes: 

"The survey on wildlife damage by the National Agricultural Statistics Service (NASS) 

reported wildlife damage to US. agriculture at $944 million during 2001. Field crop 

losses to wildlife totaled $619 million and losses ofvegetables,.fruits, and nuts totaled 

$146 million." 

"More than half of all farmers and ranchers experience damage from wildlife each 

year. 

When it comes to wildlife, Farm Bureau policy supports the following general principles: 

• There is an increased need to safeguard farmers and ranchers from crop and livestock 

damage caused by game animals, migratory fowl, certain species of birds and predatory 

animals. 

• Many species of wildlife and migratory birds feed on private property with no recourse 

available to the property owner. 

• Compensation to farmers and ranchers for damages caused by wildlife. 

• Farmers having the right to protect their crops and livestock from destruction by wildlife 

and migratory birds, on both private and public lands. 

Adjusting hunting seasons in certain areas to help control damage caused by wildlife and 

migratory birds. 
28 

Senator BARRASSO. Thank you so very much, Mr. Yates. We appreciate your testimony. 

Now, Mr. Lyons. 

STATEMENT OF JIM LYONS, SENIOR FELLOW, CENTER FOR 

AMERICAN PROGRESS, LECTURER, YALE SCHOOL OF FORESTRY AND ENVIRONMENTAL STUDIES 

Mr. LYONS. Mr. Chairman, members of the Committee, I am Jim 

Lyons. I am currently a Senior Fellow at the Center for American 

Progress and a lecturer at the Yale School of Forestry and Environmental Studies. Previously, I have served as Deputy Assistant Secretary for Land and Minerals Management in the Department of 

the Interior under President Obama and as USDA Under Secretary 

for Natural Resources and Environment under President Clinton. 

And from 1985 to 1993 I was a member of the House Committee 

on Agriculture staff, where I had the opportunity to help lead the 

effort to shape both the Conservation and Forestry Titles of the 

1990 Farm Bill. 

I bring up the 1990 Farm Bill because I believe it was a 

groundbreaking effort that expanded the scope of our conservation 

toolkit. Since then, through successive Farm Bills I believe we have 

demonstrated the important relationship between farmers, ranchers, and Federal conservation agencies and the power of their partnership. 

Voluntary conservation made possible by the technical and financial assistance by Federal conservation agencies and their State 

and private partners have maintained and restored the health of 

millions of acres of farm and ranchlands, and conserved fragile 

soils, wetlands, water quality, and wildlife habitat. 

We continue to depend on the Nation’s farmers and ranchers not 

only for our food and fiber, but also for the care of our lands and 

natural resources. As Conservationist Aldo Leopold described in 

1939, ‘‘It is the American farmer who must weave the greater part 

of the rug on which America stands.’’ Nearly fourscore years later, 

Leopold’s comments remain very valid. 

American farmers and ranchers remain conservation leaders, and 

we have an obligation to the American people to ensure that we 

protect and promote the public-private partnership that has helped 

protect our capacity to produce safe and affordable food and fiber, 

and conserve America’s soil, water, air, and wildlife resources. 

The ACRE Act is an interesting amalgam of bills. I will do my 

best to address them today, but I implore you to work together in 

a thoughtful, bipartisan approach to build on the foundation of 

prior Farm Bills to improve efforts to weave the rug of conservation 

of which Leopold has spoken. 

Given the limited time, I will comment on just a few sections of 

the bill. 

On Section 3, the exemption from certain notice requirements 

and penalties under CERCLA, I understand that this would simply 

codify an exemption from these requirements that had been implemented since 2008. Minimizing the burden on farmers for collecting 

and reporting necessary data makes sense, and I strongly support 

that objective. 

29 

I hunt and have hunted waterfowl on Maryland’s eastern shore, 

so I understand the intent of Section 5 to further clarify the definition of normal agricultural activities under the Migratory Bird 

Treaty Act. But I would suggest, Mr. Chairman, that it might be 

better to address this definitional issue administratively, rather 

than setting a one-size-fits-all standard and statute. This should be 

done in collaboration with the NRCS, the U.S. Fish and Wildlife 

Service, and relevant State Fish and Wildlife agencies. 

With regard to Section 6, the Congress has made several attempts in recent years to find common ground in avoiding duplication, providing clarity, and reducing the burden associated with 

data collection and reporting under FIFRA and the Clean Water 

Act. Efficiency in data collection reporting is important, provided 

the intent of both FIFRA and the Clean Water Act are met. 

In places like Maryland, where I currently reside, this can be 

particularly problematic given the potential for pesticide applications to inadvertently impact waterways and the Chesapeake Bay. 

Simply having a pesticide registered under FIFRA, in my opinion, 

does not obviate the need for ensuring the Clean Water Act requirements are met where the potential for impacting water resources occurs. 

While I understand the purpose of Section 7, the Farmer Identity 

Protection Act, and the concern of livestock producers, I think it is 

important the data related to these activities be collected in a manner that permits research and analysis to benefit producers, help 

reduce operator costs, improve the efficiency of livestock operations, 

as well as protect public safety and the environment. 

Regarding Section 8, aerial photography and assessments by 

their very nature are intended to cover large landscapes, making 

it difficult, if not nearly impossible, to gather permission from all 

those owners and operators who may be in the area that is the 

focus of these aerial surveys. Aerial surveys are an important tool 

for wildlife managers and research scientists whose studies can improve management practices that can benefit farmers and ranchers, as well as wildlife and the environment. 

Finally, reaffirming the respective authorities of the U.S. Fish 

and Wildlife Service and APHIS to work together to address animal damage issues can do no harm, but I would suggest that a 

change in the law is not warranted. The issue raised by Mr. 

Miyamoto with regard to eagles and sheep losses is a very serious 

concern, I am well aware of that, but it seems to be more of an 

issue of providing adequate resources to the Fish and Wildlife Service to do its job, rather than reaffirming in statute that APHIS and 

the Service do their jobs. 

Thank you, Chairman Barrasso and members of the Committee. 

Appreciate the opportunity to share my thoughts today. 

I would close by emphasizing one thing, and that is data and information are important management tools that can improve farm 

and ranch operations, inform new and better approaches for achieving conservation goals, and ensure that taxpayer dollars are used 

efficiently and effectively. That is, data are an asset, not just a 

bludgeon. If we can focus on opportunities to work together, agriculture, fish and wildlife, public health and safety, and our environment will benefit. 

30 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Lyons follows:] 

31 


30329.031

STATEMENT OF 

JIM LYONS 

SENIOR FELLOW, CENTER FOR AMERICAN PROGRESS 

and 

LECTURER, YALE SCHOOL OF FORESTRY AND ENVIRONMENTAL STUDIES 

Regarding 

S. _,Agriculture Creates Real Employment Act (ACRE) 

March 14, 2018 

Mr. Chairman and Members of the Committee, my name is Jim Lyons. I am currently a Senior 

Fellow at the Center of American Progress and a Lecturer at the Yale School of Forestry and 

Environmental Studies. Previously I served as Deputy Assistant Secretary for Land and Minerals 

Management in the Department of the Interior under President Obama and as USDA Under 

Secretary for Natural Resources and Environment under President Clinton. In the late 1980s 

through 1993, I was a senior staff member for the Chairman of the House Committee on 

Agriculture where I had the opportunity to help lead the effort to shape both the Conservation 

and Forestry Titles of the 1990 Farm Bill. 

I have worked in conservation and agriculture for most of my career. I mentioned the 1990 

Farm Bill because it was grounding breaking in many ways. It was only the second farm bill to 

have a conservation title and the first to have a forestry title. 

Building on the establishment of the Conservation Reserve Program and the sodbuster, 

swampbuster, and conservation compliance programs in the 1985 Farm Bill, the Congress 

greatly expanded the conservation partnership between what was then the Soil Conservation 

Service (now the Natural Resources Conservation Service (NRCS)) and farmers and ranchers in 

the 1990 Farm Bill. 

Former House Agriculture Committee Chairman, Kika de Ia Garza, from Texas, often 

emphasized that farmers are the original conservationists as their livelihoods are dependent 

upon their commitment to conserve the landscapes that they manage. His view, and clearly 

that of the congress which passed the 1985 and '90 farm bills, was that the role of the federal 

government was to further assist private landowners in implementing practices to protect their 

soil, water and wetland resources, and to enhance wildlife habitat. 

Kika was a great chairperson and a great conservation champion. Under his guidance- and 

that of then-Senate Agriculture Committee Chairman Leahy-- the '90 bill established the 

wetlands reserve program, the farmland protection program, the Wildlife Habitat Improvement 

Program, the Environmental Quality Incentive Program (EQIP) which was a cost-share 

assistance program that served as the precursor for similar programs utilized by millions of 

farmers today, the forest legacy program, and similar conservation programs that 

demonstrated the important partnership between farmers and ranchers and federal 
32 


30329.032

conservation agencies like the NRCS, Farm Services Agency, and Forest Service in the US 

Department of Agriculture, and the US Fish and Wildlife Service in the Department of the 

Interior. Voluntary conservation made possible by the technical and financial assistance 

provided by federal conservation agencies, and their state and private partners, maintained and 

restored the health of millions of acres of farm and ranchlands, set aside lands for wildlife and 

water quality, and through conservation easements, preserved fragile soils, wetlands, and 

wildlife habitat. 

Our work was bipartisan, it was thoughtful and deliberate. Though staff and Members didn't 

always agree and the debates were, at times, intense, the 1990 Farm Bill reflected a vision for 

the future of private land conservation that was founded on the recognition that the health of 

our Nation's natural resources is a function of our collective commitment to manage for the 

greatest good, for the greatest number, for the long term. After leaving the committee staff in 

1993, I had the honor of serving as the first USDA Under Secretary for Natural Resources and 

Environment and helping to implement many of the innovative conservation measures I had 

worked with my staff colleagues and Members to design. 

We continue to depend on the nation's farmers and ranchers not only for our food and fiber, 

but also for the care of our lands and natural resources. Conservationist Aldo Leopold 

described the conservation picture well in 1939 when he wrote that, 

"[l]t is the American farmer who must weave the greater part of the rug on which 

America stands." 

Leopold's comments are as valid today- nearly four score years later- as then. We depend on 

American farmers and ranchers to remain the conservation leaders they have long been, and 

we have an obligation to the American people to ensure that we protect and promote the 

public/private partnership that has helped conserve America's soil, water, air, and wildlife 

resources. 

The ACRE Act is an interesting amalgam of bills apparently designed, for the most part, to 

address a number of concerns raised by various farm and ranching interests. While I recognize 

the importance of responding to constituent concerns, I encourage you to consider the gains 

made and the lessons learned in previous Farm Bills in working to develop a thoughtful, 

bipartisan approach to agriculture policy issues built upon the important foundation that past 

farm bills have provided for improving conservation of fish and wildlife habitat across the 

nation. 

An important example is NRCS's Sage Grouse Initiative (SGI) which committed half a billion 

dollars to private land conservation and habitat restoration activities across the remaining 

eleven state range of the species. The SGI has led to juniper removal in Idaho restoring 50 

square miles of sage grouse habitat across private and public lands; conservation easements to 

protect grouse habitat on private ranches in Wyoming; and conservation agreements with 

farmers and ranchers from Oregon and Nevada to Montana and the Dakotas. The SGI, 

capitalizing on policies and programs authorized in previous farm bills, made possible 

conservation practices for sage grouse habitat that farmers and ranchers are implementing that 
33 


30329.033

will provide them certainty that their operations will not be adversely impacted should a 

change in the status of the species warrant listing. In this way, farmers and ranchers are 

demonstrating a commitment to collaborative conservation that will benefit them, their lands, 

and the wildlife they enjoy. "What's good for the herd is good for the bird", one Oregon 

cattleman said. All of this is based on a commitment to translate science to policy based on 

research derived from real-world, on the ground data. This is what conservation can and 

should be. 

The nation's conservation legacy will be determined by the farm bill that you build here, and in 

the agriculture committee, and on the Senate floor. Think about that as you proceed with this 

bill and other pieces of farm legislation. 

This morning, I have been asked to provide comments on each of the measures in the ACRE Act 

and will do so to the best of my ability. 

On Section 3, taken from the FARM Act, the exemption from certain notice requirements and 

penalties under the Comprehensive Environmental Response, Compensation, and liability Act 

(CERCLA), I understand that this would simply codify an exemption from these requirements 

that had been implemented since 2008. Minimizing the burden in collecting and reporting such 

data seems to make sense provided there remains a means to track any unintended, adverse 

impacts associated with the release of animal waste for non-intensive livestock operations. 

Section 4, the exemption of Exportation of Certain Echinoderms from Permission and 

Licensing Requirements, would provide an exemption from inspections under the Endangered 

Species Act's export requirements for sea urchins and sea cucumbers for consumption or 

recreational purposes. While I understand the objective, I think you recognize the importance 

of gathering information about the harvests of these increasingly popular delicacies. I don't 

believe that the ESA is a burden in this regard. Reporting harvest data is important to ensure 

that these species don't become candidates for future ESA listing. I am confident that some 

means can be found to monitor harvest of these species that minimizes impacts on commercial 

and recreational activities so that they can continue in a sustainable way. 

Section 5 would allow agricultural producers to engage in "normal agricultural activities" that 

may have been previously considered baiting under the Migratory Bird Treaty Act {MBTA). I 

hunt and have hunted waterfowl on Maryland's eastern shore, so I understand the intent of 

this measure. I will say, however, that I have been in fields where the remaining grain seems to 

be excessive- or maybe the harvest was not as clean as it could have been -so these 

judgements are important. I would suggest that the Natural Resources Conservation Service 

(NRCS) and the appropriate state and federal fish and wildlife agency personnel be involved in 

more narrowly defining what constitutes "normal agricultural activities" for this bill. I would 

also suggest that it might be better to address this definitional issue administratively rather 

than setting a "one size fits all" standard in statute. I would also suggest that NRCS, the US Fish 

and Wildlife Service, and the relevant state fish and wildlife agency be involved in monitoring 

implementation of any changes made to ensure that the intent of this bill is realized. 
34 


30329.034

Section 6 would amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and 

the Clean Water Act to eliminate duplicative reporting requirements for approved pesticide 

applications under FIFRA. The Congress has made several attempts in recent years to find 

common ground in avoiding duplication, providing clarity, and reducing the burden associated 

with data collection and reporting while being mindful of the need to provide the data 

necessary to protect the public and our environment. Efficiency in data collection and 

reporting makes sense provided the intent of the requirements of both FIFRA and the Clean 

Water Act can be met. In places like Maryland, where I currently reside, this can be particularly 

problematic given the potential for pesticide applications to inadvertently impact waterways 

and the Chesapeake Bay. Simply having a pesticide registered under FIFRA, in my opinion, 

does not obviate the need for meeting Clean Water Act requirements where the potential for 

impacting water resources or water-based crops (e.g. cranberries) occurs. However, I agree 

with the objective of seeking the most efficient and effective way of providing the necessary 

data to protect the public and the environment while minimizing the burden on farmers. 

Section 7, the Farmer Identity Protection Act, would prohibit the EPA, or EPA contractors, 

from disclosing information under the Clean Water Act from livestock operations. The intent 

of this section sounds very similar to a provision that we included in the 1990 farm bill to 

prevent farmer-specific information about pesticide applications from being disclosed to the 

public. While I understand the concern that livestock producers may have, I also believe it is 

important that data related to these activities be collected in a manner that permits research 

and analysis to benefit producers, that can help reduce operator costs, improve the efficiency 

of livestock operations, as well as protect public safety and the environment. And, I would 

recommend that if the actions of a livestock operator have resulted in or are suspected of 

resulting in significant harm to the public, a federally-protected species, or the environment, 

that the Administrator should be granted the authority to waive the prohibition on 

procurement and disclosure of information. 

Section 8 would prevent enforcement of the Clean Water Act for agricultural operations 

resulting from aerial surveillance without express written consent of the owner/operator. 

Regarding this section of the bill, I fully understand agricultural operators concerns, however I 

question if any use of aerial surveys would be possible with the permissions required. Aerial 

photography and assessments, by their very nature, are intended to cover a large landscape, 

making it difficult if not nearly impossible to gather permission from all those owners/operators 

who may be in the area that is the focus of aerial surveys. I would point out that aerial surveys 

are an important tool for monitoring wildlife populations- e.g., migratory bird counts; for 

tracking changes in important habitat such as the status of wetlands in the prairie pothole 

region which provides critical nesting areas for ducks and other migratory waterfowl; and 

gathering data for research that can improve management practices that can benefit farmers 

and ranchers as well as wildlife and the environment. For this reason, I question the ability to 

implement this bill in a way that permits the continued collection of management information 

that is essential to continue to make progress in improving resource management and wildlife 

conservation goals. 
35 


30329.035

Section 9 would allow the continued take of Double-Breasted Cormorants with respect to 

freshwater aquaculture facilities. I am also a fisherman and I recognize the impacts that 

cormorants can have on fish populations, especially when concentrated as in aquaculture 

operations. Rather than codifying this exemption, I would suggest that the industry work with 

the US Fish and Wildlife Service and USDA to develop appropriate administrative measures to 

remedy the industry's concerns. 

Section 10, would provide an exemption to the EPA's Spill Prevention, Containment, and 

Control rule for certain farms and permit an increase in volume of fuel that can be stored on 

farm for self-certification. like my comments regarding cormorants, I question the need to 

codify these changes. The administration has ample authority to propose a change in rules 

applicable to fuel storage requirements and seeking changes in the law for each "limited 

exemption" seems unnecessary and inappropriate. If warranted, the administration should 

use its existing authority to make these changes administratively. 

Section 11 seeks to reaffirm the respective authorities of the US Fish and Wildlife Service and 

APHIS in the US Department of Agriculture regarding animal damage control. This, too, seems 

like an unnecessary change in the law although there is no harm in reaffirming the importance 

of collaboration between the Fish and Wildlife Service and APHIS regarding animal depredation 

issues. 

In closing, Mr. Chairman, I want to reaffirm the importance of coordination and collaboration 

between the US Fish and Wildlife Service, state fish and wildlife agencies, and USDA, EPA, and 

other relevant federal and state agencies in implementing farm bill programs and practices that 

benefit farmers and ranchers and the conservation of our nation's wildlife and natural 

resources. In my experience, the working relationships between these agencies was good 

provided they had adequate resources and continued their efforts- at all levels- to coordinate 

and collaborate. Encouraging that continued working relationship is valuable, but legislating 

"fixes" for each perceived incidence of inadequate coordination or collaboration can be 

counterproductive. 

I also want to emphasize the importance of ensuring that measures intended to protect farmers 

and ranchers from the perceived threat of enforcement using data collected from various 

sources, including aerial surveys, satellite imagery, and other advancing technologies is a 

double-edged sword. Going back to my experience with the 1990 Farm Bill, we sought to 

protect the identity of individual producers to prevent use of data for enforcement actions in 

part to ensure that farmers and ranchers would not be afraid to avail themselves of the 

technical and financial assistance provided by USDA agencies. We think it worked well as 

evidenced by the substantial gains in conservation on private lands we've seen in the past 25 

years. But gathering data is an important part of measuring success, of improving the delivery 

of conservation assistance and resources, and further refining and improving our conservation 

efforts. It is essential that the agencies of the federal government provide technical and 

financial assistance in the most efficient and cost-effective manner and that the intended 

benefits of this assistance- be they financial or environmental- be realized. Data are essential 

to ensure that this objective is achieved, and the taxpayers' investments are made wisely. 
36 


30329.036

I fear that the fear of data- and of government agencies collecting data -- is adversely 

impacting our ability to improve our conservation programs and do a better job of conserving 

the soil and water resources that are essential for producing the food and fiber, fish and wildlife 

habitat, clean air, water resources, and outdoor recreation opportunities that come from our 

farms and ranches. It is interesting how much some people fear the data collection efforts of 

government agencies when private businesses are collecting data and information from us 

constantly and, often, without our knowledge- every time we use our cell phone, make a 

purchase, or ask Google or Alexa the weather forecast. 

We live in a time of "big" data. Information is a powerful tool that we should embrace in 

working together to ensure a sustainable future. In this regard and given the conservation 

legacy of our prior Farm Bills, government agencies should be viewed as partners, not 

adversaries. 

Thank you for the opportunity to testify before you today. 
37 


30329.037

Responses to Questions from the Senate Committee on Environment and Public 

Works regarding the Hearing on S. __, the Agriculture Creates Real 

Employment Act (ACRE}, March 14, 2018 

Submitted for the Record by Jim lyons, Senior Fellow, Center for American 

Progress and lecturer, Yale School of Forestry and Environmental Studies 

May2, 2018 

Question 1: In your testimony, you discuss the importance of conservation programs 

administered by federal conservation agencies and their state and private partners. Would you 

elaborate on how voluntary conservation partnerships have served both farmers and the 

environment? Would you provide one or two specific examples of how federal investmentssuch as the Sage Grouse Initiative mentioned in your testimony- have helped preserve the 

environment to the benefit of farmers? What should Congress focus on to improve and further 

incentivize conservation partnerships? 

Answer: Nearly two-thirds of the land base in the United States is privately-owned. Of this, 

approximately 45 percent is managed as cropland, pasture land, and rangeland and 30 percent 

is managed as forestland. For this reason, the future of conservation in American will be 

heavily dependent upon the conservation decisions made by farmers, ranchers, and forestland 

owners. As I noted in my testimony, Aldo Leopold, conservation leader and philosopher, 

stated, 

"[l]t is the American farmer who must weave the greater part of the rug on which America 

stands." 

For decades conservation programs administered by the Soil Conservation Service and its 

successor, the Natural Resources Conservation Service, have played a critical role in advancing 

efforts to conserve fragile soils, wetlands, and important fish and wildlife habitats on state and 

private lands. Beginning in the 1985 Farm Bill, Congress authorized conservation measures to 

protect highly-erodible soils (a program known as "sodbuster") and prevent the draining and 

destruction of farm wetlands (a program known as "swampbuster"). Through the Conservation 

Reserve Program, the Congress also authorized the temporary set aside and removal from 

agricultural production, on a voluntary basis, of highly erodible lands through establishment of 

the Conservation Reserve Program (CRP). CRP benefitted farmers by providing incentives in the 

form of direct payments to reduce the production of crops that might be in surplus in order to 

balance market supply and help to stabilize prices for that commodity. Since the lands taken 

out of production were required to meet certain environmental criteria- e.g., were determined 

to be highly erodible lands at the beginning of the CRP program and later were determined to 

meet a number of environmental measures- not only did CRP help reduce the production of 

11 s (' t \IV mitt t i n s 
38 


30329.038

crops in surplus thus stabilizing commodity prices to farmers' benefit but it also helped to 

prevent production on environmentally-sensitive lands to reduce soil erosion and benefit water 

quality by reducing polluted runoff into nearby waterways. Farmers and the environment 

benefitted from CRP and continue to do so. 

During the 10-year period of a typical CRP contract, farmers plant cover crops on these fragile 

soils not only to prevent soil erosion but often to enhance wildlife habitat. Many farmers make 

their CRP lands available for hunting when habitat is restored which provides them with the 

potential for income from fee hunting in addition to the payments received by the government 

for resting these lands from production. In fact, the CRP was so effective that the concept of 

temporary land retirements was expanded in subsequent farm bills to include special measures 

to protect the environment. For example, under the Conservation Reserve Enhancement 

Program (CREP) initiated in the 1990s, farmers were compensated for voluntarily planting trees 

along streamside buffers to prevent soil erosion from nearby croplands further helping to 

reduce polluted runoff into streams and adjacent water bodies. In fact, one of the first CREP 

initiatives was launched on the Eastern Shore of Maryland to benefit the Chesapeake Bay. 

The 1990 Farm Bill conservation title significantly expanded programs to benefit farmers who 

voluntarily participate in conservation programs such as the Wetland Reserve Program (WRP), 

and the Farmland Protection Program (FPP). In every instance, farmers are paid for enrolling in 

programs that protect the environment and help keep farmlands in agricultural production. 

The 1990 Farm Bill also included the first farm bill Forestry Title which provided measures to 

protect forest lands threatened with conversion and development through the Forest legacy 

Program. Many states continue to use this program to conserve forests for their watershed and 

wildlife habitat benefits. 

Conservation titles in subsequent farm bills, beginning with the 1990 farm bill, significantly 

expanded opportunities for farmers to voluntarily participate in programs to protect fragile 

soils, water quality, air quality, wetlands, and wildlife habitat. For example, farmers benefitted 

by obtaining payments for implementing specific conservation practices and were afforded free 

technical assistance from the NRCS, state conservation personnel, and conservation district 

employees. The environment benefitted through the protection and restoration of highly 

erodible lands, important wildlife habitat, and forest and farmlands threatened with 

development. As farm bills have evolved, greater emphasis has been placed on measures to 

enhance voluntary, collaborative conservation on a landscape scale and encourage the 

coordinated use of specific farm bill conservation authorities to further their effectiveness. 

Farm bill conservation and forestry programs have been a critical part of the nation's 

conservation tool kit and the partnership between farmers, ranchers, forest landowners, and 

conservation professionals in state, federal, and private organizations remains an essential part 

of the effort to maintain agricultural productivity and protect the environment. One important 

example was the innovative use of farm bill conservation programs to protect and restore 

private land habitat for the Greater sage grouse across 11 western states. Through the Sage 

21 f' L n s 
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Grouse Initiative (SGI). hundreds of millions of dollars were committed to protecting and 

restoring the sagebrush ecosystem which provides habitat for the Greater sage grouse. SGI 

provided technical assistance and financial resources for private land owners in these states to 

improve Sage grouse habitat through various means including the protection and restoration of 

seeps and wetland areas and the removal of invasive species, including juniper trees which 

render habitat useless for the Greater sage grouse. Using existing conservation programs and 

authorities, NRCS and its partners worked with landowners throughout the remaining range of 

the Greater sage grouse to protect, restore, and enhance several hundred million acres of sage 

brush habitat. In turn, the US Fish and Wildlife Service (FWS) established agreements with 

farmers and ranchers to ensure that, should the Greater sage grouse be listed as a threatened 

or endangered species, private landowners enrolled in SGI who continued to implement 

prescribed conservation practices would not be required to implement added measures to 

protect the grouse. Fortunately, as a result of these private land conservation practices and 

the conservation efforts of state, federal, and private partners across public and private lands in 

the sagebrush ecosystem, the FWS determined that listing the grouse as threatened or 

endangered under the Endangered Species Act was not warranted. 

In summary, as a result of the imagination and initiative of past Congresses to invest in private 

land conservation measures, we have made considerable progress in addressing a broad range 

of environmental concerns including improvements in water and air quality; the protection, 

restoration, and enhancement of habitat for at-risk, game, and non-game species of fish and 

wildlife; keeping farm lands threatened by growth and development in agricultural production; 

improving forest health and reducing wildfire risk; reducing the loss of highly erodible soils and 

wetlands; and helping farmers, ranchers, and associated rural communities remain 

economically-viable and a vibrant part of the American landscape. 

To continue progress, it is essential that the Congress and administration continue to invest in 

these conservation programs and support landscape-level, science-based, collaborative 

conservation efforts throughout the United States. These initiatives are fully consistent with 

the important role that private lands play in conserving America's lands, waters, wildlife, and 

important natural resources while continuing the important production of food, fiber, and 

other resources essential to the nation. This approach for encouraging and investing in private 

land conservation to benefit the environment and private landowners is fully consistent with 

the philosophy envisioned by Leopold who recognized that, "Conservation will ultimately boil 

down to rewarding the private landowner who conserves the public interest." 

Question 2: Section 9 of the ACRE Act would codify a regulation that seeks to address the 

impacts of double-crested cormorants on aquaculture operations. However, the U.S. District 

Court for the District of Columbia found that regulation was not compliant with the National 

Environmental Policy Act or supported by sufficient science. Would you elaborate on why it 

would be important to redo an environmental assessment on this rule to ensure that it is 

science-based and in the best interest of both cormorants and the aquaculture industry? 

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30329.040

Answer: As noted in my testimony, I understand the concerns of the aquaculture industry for 

the potential impacts of cormorants on their industry. However, a proper and balanced 

solution requires a close look at alternative measures to mitigate the impacts of cormorants in 

a manner that does not lead to greater impacts on the environment nor cause unnecessary 

harm to cormorant populations over the long term. In this way, science-based solutions can be 

identified that achieves both of these outcomes in an economically-viable manner. Rather 

than circumventing NEPA in completing this work, the alternatives identified should be put 

through rigorous environmental analysis to ensure that the most effective and cost-efficient 

alternative can be identified that avoids unintended impacts to other species of wildlife and/or 

the environment. I am confident that this can be achieved with minimal additional burden on 

the aquaculture industry and cost to the US Fish and Wildlife Service. 

Question 3: In your testimony you suggest more narrowly defining "normal agricultural 

practices" in terms of what should and should not constitute bird baiting. You also mention that 

the Administration may be able to work with farmers and hunters to address this issue. Given 

your hunting and farming experience, I am very interested in your perspective. Would you 

elaborate on why a narrow definition is important? How might the Administration work with 

stakeholders to resolve Migratory Bird Treaty Act liability concerns? 

Answer: Normal agricultural practices are farming activities where seeds or grains have been 

scattered solely as the result of normal agricultural operations, including harvesting and post· 

harvesting activities. Of course, agricultural practices depend on the crop planted and 

harvested and what might constitute customary cultivation, harvesting and post-harvesting 

activities associated with a given crop in a given part of the country. For this reason, 1 believe it 

is important for state and federal wildlife officials to work c!osely with farmers. farm 

organizations, and federal and state agricultural agencies to ensure that the rules that apply to 

post-harvest hunting are reflective of the practices for il given crop in given region or state. 

The USDA Natural Resources Conservation Service, which has extetlsiv<? experience in working 

with agricultural producers on conservation and wildlife concerns, the USDA Extension Service, 

and the US Geological Survey's Fish and Wildlife Service's Cooperative Wildlife Research Units 

(formerly administered by the US Fish and Wildlife Service) which are associated with land 

grant colleges across the nation, have important insights into what constitutes both normal 

agricultural practices and traditional sport hunting activities in differt'Ot regions of the country 

for different types of game. A definition of "normal agricultural practices" for purposes of 

addressing concerns for bird bating must reflect how farming is conducted in a given region for 

particular agricultural crops given traditional planting, harvesting, and post-harvesting 

practices. If done in this way, I believe "normal agricultural practices"' can be narrowly defined 

and tailored, consistent with existing scientific information on migratory birds and aericultural 

practices, to reduce the potential for conflict over bird baiting and issues associated with 

enforcement ot the Migratory Bird Treaty Act. If too broadly defined, wide interpretation of 

the tc>rm is likely to result based on the expertise and experiences of the individual responsible 

41 n t c u s t n s 
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30329.041

way 

Question 4: Just like other facilities, farms that store substantial quantities of fuel onsite have 

been required to have certain safeguards in place to protect against the risks of fuel spills. The 

more fuel you store, the more safeguards you must have in place, because of the greater risks 

that come from a larger spill. The 2014 WRDA bill changed the way this rule applied to farms, 

by letting farmers store larger quantities of fuel before safeguards are required. The WRDA bill 

also directed EPA to study the issue. EPA completed its study and found that the 2014 WRDA 

bill exempted between 81-96% of farms from any requirements, and that less than 1% of farms 

had to meet the strictest safeguards. It also found that "small discharges cause significant harm 

and [there is a]lack of evidence that farms are inherently safer than other" facilities. Section 10 

of the ACRE Act would exempt even more farms from requirements under this rule by further 

increasing the amount of fuel that could be stored on a farm with reduced safeguards. Given 

the EPA study, why are these changes necessary at all? 

Answer: Based on the information provided by the EPA as reflected by this question, I, too, 

would question the need for additional changes in the 2014 WRDA bill leading to further 

exemptions. Of course, it would also be useful to have additional data on the extent to which 

small discharges occur on farms and the "significant harm" that these discharges may cause, as 

well as what measures might be adopted and implemented to mitigate their impacts. Were 

additional data available regarding the extent to which small on-farm discharges occur and 

their impact to health, safety, and the environment, it would be much easier to address this 

question and further define the nature and extent to which exemptions should be granted. I 

assume, however, that this would be difficult to determine given the exemptions granted under 

current law that likely limit the data available to assess the extent and impacts of on-farm fuel 

spills. For these reasons, I would encourage the committee to proceed with caution in 

authorizing any further exemptions from the current safeguards required to protect against the 

risks for fuel spills without additional information regarding the nature, extent, and impacts of 

on-farm fuel spills. 

Question 5: Mr. Lyons, last fall, I along with Senator Capito, Senator Carper, Senator Cardin, 

and 4 other Senators introduced a bill called the Chesapeake Bay Farm Bill Enhancements Act. 

Governors in the Chesapeake Bay Region, including MD Governor Hogan and DE Governor 

Carney support the bill, as do over 70 organizations like the Chesapeake Bay Foundation. This 

bill seeks to strengthen the Department of Agriculture's Regional Conservation Partnership 

Program (RCPP) through additional funding and technical assistance. Amongst other things, 

this program has been successful in bringing together conservationists and farmers to enhance 

their practices to reduce nutrient runoff into the Chesapeake Bay. Can you tell us more about 

how you have seen farmers and conservation partners working hand in hand to protect our 

environment through programs like the Regional Conservation Partnership Program? 

51 e tv n rc's ns ll t i 0 
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30329.042

Answer: The Regional Conservation Partnership Program (RCCP) provides an important means 

to encourage locally-led, collaborative conservation efforts to address important conservation 

concerns across the nation. Through financial and technical assistance offered under the RCCP 

by the Natural Resources Conservation Service (NRCS), agricultural producers, forest 

landowners, Indian tribes, and other private landowners can work together to achieve a wide 

range of conservation objectives through the coordinated use of the Agricultural Conservation 

Easement Program (ACEP), Environmental Quality Incentives Program(EQIP), Conservation 

Stewardship Program (CSP), and the Healthy Forests Reserve Program (HFRP). 

Addressing the many environmental issues affecting the Chesapeake Bay requires a landscapelevel, science-based collaborative approach involving federal and state agencies, private 

landowners, private non-profit conservation organizations, businesses, community leaders, and 

local conservationists. The RCCP was designed to encourage this kind of coordinated, 

collaborative approach to address environmental issues that transcend physical and political 

boundaries. It is the most effective and efficient way to leverage the technical and financial 

expertise needed to deal with regional issues and to tap into the diverse resources that all 

parties can bring to the table. 

A landscape-level approach to coordinating the development and delivery of conservation 

programs has been employed in addressing many other conservation issues requiring a regional 

strategy and collective conservation effort. Examples include the effort to protect and restore 

threatened salmon runs in the Pacific Northwest, efforts to curb the expanding hypoxia zone in 

the Gulf of Mexico resulting from polluted runoff originating in the upper reaches of the 

Mississippi and Missouri watersheds, and the recent successful efforts avoid the need to list the 

Greater sage grouse as a threatened or endangered species in the sagebrush ecosystem 

covering eleven states from the Rocky Mountains to the Great Basin in Utah and Nevada. This 

same collaborative approach is being employed to reduce the risk of wildland fire in many 

western states and to protect the ecological integrity and rural economies of portions of the 

Northern Rockies. A great discussion of the value of a landscape-level approach to 

conservation, including regional examples of landscape conservation initiatives, can be found 

on the USDA Natural Resources Conservation Service website at: 

Partnerships, collaboration, and coordination at a landscape scale are essential to successful 

efforts to conserve America's great landscapes, wildlife, and other important natural resources 

and the rural and urban communities upon which they depend for food, fiber, water, outdoor 

recreation, and other resources. Through the RCCP, greater efficiency and effectiveness in 

developing and implementing conservation strategies to address regional conservation 

concerns such as improving the health of the Chesapeake Bay can be achieved. While this 

approach still requires individual landowners who volunteer to participate to implement 

specific conservation measures, through collaboration, coordination, and shared learning, the 

benefits of individual landowner conservation efforts can be enhanced and amplified. 

Continued investment in the RCCP and the technical and financial support that conservation 

programs implemented through the RCCP provide is essential if we are to make continued 

61 y s r p itt tl 
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30329.043

progress in partnership with farmers, ranchers, forest landowners, American Indian tribes, and 

others in addressing regional conservation issues. 

7! cl yo ~'l s r n 
44 

Senator BARRASSO. Well, thank you very much for your testimony. Thank you all. 

We will now have a round of 5 minutes of questions, and I will 

defer my time to Senator Inhofe. 

Senator INHOFE. Well, thank you, Mr. Chairman. 

I was listening, Mr. Miyamoto, to your opening statement. I 

chaired this Committee for a number of years, and the one thing, 

particularly during the last Administration, as a general rule, the 

Democrats want more regulation, and they want that regulation to 

come from Washington, not from locally or from the States. I remember going over the WOTUS rule. That was at a time when, 

and I think, Mr. Yates, you will remember this, that was the No. 

1 concern, I think, for the Farm Bureau at one time. This was the 

big issue. 

Now, my State is an arid State, and we can just envision if the 

regulation that was put forth by the Obama administration had become a reality. It wouldn’t be long until our panhandle would be 

a wetland, and we were fully aware of that. There would be another army of bureaucrats crawling all over our farms and ranches 

in Oklahoma. 

So, anyway, that is the overall thing. And, by the way, there was 

one really good program, it was called the Partnership Program 

that came from Fish and Wildlife, and this happened actually in 

the last Administration, where they actually came out, in my case, 

before confirmation of the Fish and Wildlife Director, I said I want 

you to make two trips out to Oklahoma and talk about the partnership and the people who are the farmers and the ranchers on the 

ground; and they came back with the conclusion that they are just 

as concerned or more concerned than the bureaucracy here in 

Washington is on what they want to do with the land, and they 

were very impressed by the fact—and it just stands to reason, but 

a lot of bureaucrats don’t understand this, if you own a piece of 

property, you want it to be clean, you want it to conform. This is 

to your financial and to your benefit. 

Mr. Miyamoto, when I look at the list of regulations, I come to 

the conclusion that there is the idea in Washington that you have 

to have someone here looking out after your property because you 

are not going to do a good job yourself. You, yourself, acknowledge 

that some of these regulations targeted in the bill were of no environmental benefit, so it is unclear as to why would the opposition 

be opposition to them, other than loss of control. Unfortunately, it 

is our State partners that are then forced to comply with Federal 

mandates coming with no financial support, so it comes back to unfunded mandates. 

So, I ask you the question can you speak to the burdens that you 

and your fellow State agencies face when Washington or the courts 

hand down unfunded mandates? 

Mr. MIYAMOTO. Mr. Chairman, Senator, thank you for the question. The issue of unfunded mandates and delegated authority for 

State Departments of Agriculture is something that we have to 

think about frequently. We do carry out FIFRA regulations as a 

State Department of Agriculture in Wyoming, so this issue of pesticide regulation really does fall on the Department of Ag. 

45 

There are other examples of many other programs that we have 

delegated authority from the Federal Government to implement 

regulations in the State. As an example, within the Wyoming Department of Agriculture, we also undertake food safety measures 

from FDA and we have Federal Meat Inspection Act under the 

Food Safety Inspection Service, and we have to make sure that we 

can do a good job of carrying out our regulatory obligations. 

So, when it comes to budgeting and unfunded mandates, we 

want to do a good job to carry out these Federal statutes in our 

State and uphold our end of the bargain, but it does become a challenge from time to time when there are so many of them. If they 

become duplicative, then it becomes impossible. 

Senator INHOFE. And I really think that this bill addresses a long 

list of them, and I have taken the time, as other cosponsors have, 

of going over and analyzing each one. 

I don’t want to run out of time here. Mr. Yates, last week, in 

Senator Rounds’ subcommittee hearing on the FARM Act, a colleague on the other side accused the Trump EPA of failing to provide farmers and ranchers with the guidance they need to comply 

with the recent court decisions that now requires ag industries to 

report to the EPA and the Coast Guard emissions from animal 

waste. 

Your testimony states that there is no scientific consensus on 

how to measure these emissions, and it is worth noting that the 

Obama EPA believed that this information wasn’t needed and defended the Bush era policy. So, since you believe there is not the 

scientific consensus, do you think the EPA would be able to develop 

the guidance that is really needed here? 

Mr. YATES. Well, ultimately, that is something that livestock operators are going to need from the EPA and, to date, they have not 

been able to receive appropriate guidance that would give them the 

tools that they need to effectively measure those emissions on their 

livestock operation. I know there are a couple models that have 

been referenced. Texas A&M, I believe, and I believe there is another university that has developed a model. 

Again, the application of those models to a particular livestock 

operation is inaccurate, at best, it is a guess, so I think if we are 

going to be requiring livestock operators to report these emissions, 

they need to have the tools and the guidance to be able to effectively measure what it is that they are being required to report. 

Senator INHOFE. I think it is interesting that back during the 

Obama administration that is pretty much what their feeling was, 

too, at that time. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you, Senator Inhofe. 

Senator CARPER. 

Senator CARPER. Before I ask a couple questions of our witnesses, I just want to note, if I could, Mr. Chairman and colleagues, for the record that during our hearing this morning, students across our Country are walking out of the classrooms for a 

brief while to mourn the loss of the victims of the Parkland shooting and to demand action to prevent gun violence in the future. I 

just want to acknowledge their efforts and to say that I share in 

solidarity with them. 

46 

First question I have for our witnesses, again, we appreciate you 

being here. Thank you very much for your testimony and for your 

willingness to stay on and answer some questions, and maybe even 

some questions for the record. 

As you all know, and I think Mr. Lyons may have stated this, 

there is a longstanding tradition of bipartisan collaboration on 

Farm Bills and a lot of other agriculture legislation. I hope that 

this Committee and I hope that this Congress can uphold that tradition this year. 

With that said, based on what you just heard from your colleagues, what are the areas where you see agreement among the 

three of you? What are the areas where you see agreement among 

the three of you, please. 

Mr. Lyons, do you want to lead us off? 

Mr. LYONS. I think, first of all, Senator Carper, we agree that reducing the burden on agriculture producers of data collection and 

providing information is important, but we do need data and information, so gathering that in the most efficient and effective way 

possible is important. 

I agree with the concern about harassment and the desire to 

make sure that the information is managed properly to help 

achieve its intended purpose; to help improve programs, to help improve the operations of producers, to help reduce costs both for 

them and to the taxpayer. 

And I would like to think that we all agree that we need to meet 

not only the objectives of benefiting producers, but we also have an 

obligation as a community to protect public health and safety and 

the environment, and that is certainly an important part of why 

these statutes exist. 

Senator CARPER. All right, thank you. 

Mr. Yates and Mr. Miyamoto, do you agree with anything he 

said? 

Mr. YATES. For the record? 

Senator CARPER. Yes. 

Mr. YATES. For the record, Senator Carper, I am pleased to agree 

with Jim on the issues that he brought up. I think farmers and 

ranchers across the Country are the best stewards of our land and 

I think we want to work collectively within the regulatory fabric 

that we have to live and work in to produce the best results not 

only for farms and ranches, but for the environment. So, again, I 

would agree with Jim’s comments on this. 

Senator CARPER. Good. Would you like to add any other thoughts 

of your own about what are some other areas you might see for 

agreement? 

Mr. YATES. Well, I think, across the board, farmers and ranchers, 

when we go out to the field, I know President Duvall was in a couple weeks ago at your least hearing on environmental regulation. 

Senator CARPER. Zippy Duvall. 

Mr. YATES. Zippy Duvall, yes, sir. He appreciated the commentary that you and he had at that hearing. But the No. 1 thing 

that we hear from our farmers is concerns over red tape and regulations, in addition to a number of other issues that keep farmers 

up at night, and I think this bill represents a good start at looking 

at identifying duplications of regulations and identifying opportuniVerDate Aug 31 2005 10:18 Sep 19, 2018 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\30329.TXT VERN
47 

ties to streamline those to ensure that the regulations are commonsense and they make the most sense for the folks that have to live 

and work under the guidance of those rules and regulations. 

Senator CARPER. I quote my parents almost every day of my life, 

something that they said, words of wisdom that they imparted to 

my sister and me when we were kids growing up. My dad was famous for saying, ‘‘Just use some common sense’’ to my sister and 

me, and he said it a lot. He did not say it so kindly. 

All right, Mr. Miyamoto. Just come back to what Jim has said 

and Ryan has said. Anything that you agree with that they have 

said and anything you would like to add, other possible areas of 

agreement? Go ahead. 

Mr. MIYAMOTO. Thank you, Senator. From what I heard today, 

there is a lot more agreement than there is disagreement. If there 

was one thing that I could certainly identify specifically, it would 

be the CERCLA piece and addressing that. So you are aware, I 

think that the aspects that are approached in this bill that addressed duplicative regulations and then sometimes regulations 

aimed in the wrong direction is a good start for us and would help 

me do a better job at home to not only regulate the agricultural 

community, but also to advocate for it. Because I kind of have that 

dual role and take it very seriously. 

Senator CARPER. All right, thank you. 

I have about 15 seconds left. I am going to have some questions 

for the record. I wish I could give them in person, but we will submit those for the record. Again, we appreciate very much your presence today and your contributions. Thank you. 

Senator BARRASSO. Thank you, Senator Carper. 

Senator ERNST. Senator ERNST. Thank you, Mr. Chair. 

Thank you to our witnesses for being here today. 

Mr. Miyamoto, I will start with you, Director. FIFRA established 

an effective and comprehensive regulatory—— 

Senator CARPER. Could I interrupt? 

Senator ERNST. Oh, yes. 

Senator CARPER. I apologize. I am going to go speak on the floor 

on the banking bill right now. I apologize. 

But could I just ask unanimous consent to submit for the 

record—I have a unanimous consent request that somewhere in 

this pile right here, and I would ask permission to submit for the 

record. 

And I apologize for interrupting you. 

Senator BARRASSO. Without objection. And had you attended the 

University of Wyoming, you wouldn’t have—— 

[Laughter.] 

Senator CARPER. Let the record show I was wait-listed there. 

[Laughter.] 

Senator CARPER. As were our sons. They had to go to MIT and 

William & Mary. 

[Laughter.] 

Senator CARPER. Thank you. I apologize. 

Senator ERNST. No, you’re fine, Senator Carper. 

OK, Director, we will start over again. As you know, FIFRA established an effective and comprehensive regulatory web to provide 

48 

pesticide-related environmental and public health protections, and 

this regulatory system is pretty darn rigorous in examining environmental data and health exposure assessments for pesticide 

products. 

Because this process specifically examines a product’s potential 

impact on water, additional permitting requirements under the 

Clean Water Act are duplicative. We have talked a little bit about 

duplication of effort, and this will significantly increase the cost for 

State permitting authorities and pesticide users. 

So, we have already discussed the duplication of effort, the unfunded mandates, but if you could, could you please describe—let’s 

go a little bit further into the weeds—the challenges that State Departments of Agriculture face when dealing with duplicative regulatory requirements, whether it is the costs associated with the paperwork shuffle, the timelines? Could you delve into that so that 

we know exactly what our State Departments of Ag go through? 

Mr. MIYAMOTO. Mr. Chairman, Senator, thank you for the question. It is something that we struggle with. Initially, when the 

NPDES requirements for pesticide applications came to light, 

which was eight or 9 years ago now, we had to do a series of workshops around the State with all of our certified pesticide applicators to inform them of this process, and it was quite an undertaking. 

It was a good collaboration; we used our State Department of Environmental Quality, EPA Region 8 was also represented. But 

there was a lot of training that went into how our applicators 

would become compliant with NPDES permitting requirements 

that were never aimed in that direction. 

So, initially there was a whole bunch of education, and even now, 

as people get recertified for pesticide application, we have training 

elements that are part of our training program that informs them 

of all of the steps that they have to take to get their NPDES permits and what the liabilities associated with those permits are. 

I think you quoted or you stated very eloquently that FIFRA 

handles the regulation of pesticides. We do that as a State Department of Agriculture, and, really, both NPDES and our regulation 

of pesticide applications boil down to the approved label by EPA. 

And if you follow that label that is attached to that product, you 

will be in compliance. Other than that, you are just shuffling 

paper. 

Senator ERNST. Very good. And that is a concern, too, the duplication of effort. The costs associated with that, what is a ballpark 

figure, to be qualified, and might be to the State Department as 

well? 

Mr. MIYAMOTO. Mr. Chairman, Senator, if it is OK with you, I 

will have to research that a little bit. I am unsure of what DEQ 

spends on their NPDES program specific to pesticides. I know for 

us, the training and certification program that we, as a State, put 

into our program, not Federal funds, but State funds, is about half 

a million dollars. 

Senator ERNST. OK. And, bottom line, it boiled down to, you said, 

if they just follow the instructions on the label, correct? 

Mr. MIYAMOTO. Correct. 

Senator ERNST. Correct. OK. 

49 

And Director and Mr. Yates, both of your testimoneys made pretty compelling cases as to why the CERCLA reporting requirement 

is unnecessary and why Congress never intended for emergency air 

emissions to apply to day-to-day practices on ag operations. Do you 

think the documentation and process under CERCLA for reporting 

routine low-level animal manure emissions on a farm to the Coast 

Guard’s National Response Center is the best use of Federal, State, 

and local tax dollars? 

Mr. MIYAMOTO. Mr. Chairman, Senator, again, thank you for the 

question. When I hear the term Superfund, that brings a lot to 

mind, and the expense associated with cleanup of Superfund undoubtedly is expensive. I have no idea what those expenses might 

be. 

But when it comes to CERCLA, I am quite certain that both EPA 

and the Coast Guard have better things to do with limited resources to address those sites that really are hazardous and a 

threat to human health. I don’t even know how to begin to tell producers how to estimate emissions from an individual head of livestock, so not only do I think that it is not, the regulation, aimed 

in the right direction; I don’t have anything to tell my producers 

about how to accurately comply. I can’t ethically give them a formula that I think that they could defend. 

Senator ERNST. Thank you. 

Mr. Yates. 

Mr. YATES. Certainly, I would be in agreement. I think EPA has 

recognized that low-level continuous emissions of ammonia and hydrogen sulfide from livestock are not releases that Congress intended to be regulated under CERCLA; and I think when you start 

looking at the numbers, the numbers that we have received over 

the last 8 years, the annual phone calls to the National Response 

Center have averaged about 28,000 reports a year for the last 8 

years. 

Looking at an additional 200,000 reports from farmers and 

ranchers, I don’t think it is a great use of taxpayer dollars. Frankly, I think the NRC really should be focused on its true mission, 

and not receiving reports from farmers and ranchers trying to be 

in compliance with CERCLA. 

Senator ERNST. Thank you very much. I struggle to understand 

how we would measure some of those emissions from the rancher 

and farmer standpoint, but also what exactly is the Coast Guard 

going to do when they respond? I don’t think that is spelled out 

anywhere. 

Anyway, thank you, Mr. Chairman. 

Senator BARRASSO. Thank you very much, Senator Ernst. 

Senator CARDIN. 

Senator CARDIN. Thank you, Mr. Chairman. 

Mr. Lyons, welcome. It is always nice to have a Marylander here, 

so I am glad to see you. 

Mr. LYONS. Thank you, Senator. 

Senator CARDIN. I appreciate your testimony. And I just really, 

first, want to underscore the point that you made about farmers 

and the importance to our environment that farmers understand, 

that has certainly been true in Maryland, recognizing that a clean 

environment is in their best interest and part of their responsiVerDate Aug 31 2005 10:18 Sep 19, 2018 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\30329.TXT VERN
50 

bility, as they see it, is to leave the land in better shape for the 

next generation, which includes the environment and clean water, 

et cetera, so I thank you for making that point. 

I want to sort of delve into the pesticide issue and insecticides, 

and the impact on the Chesapeake Bay, impact on clean water. We 

have made a real commitment to clean up the Chesapeake Bay, 

and all stakeholders are part of the process, including our farmers. 

They practice the best practices in order to minimize the concerns 

of pollution getting into the Bay. We very much appreciate all the 

work that they do. 

I want to talk about the FIFRA statute and its regulations as to 

whether it is duplicative of what EPA would be doing in regards 

to protecting our environment from insecticides, and get your view 

as to whether in fact this is duplicative or whether there is a different concern in regards to water quality. 

Mr. LYONS. Well, thank you, Senator, for the opportunity to address that, and I want to thank you for your leadership particularly 

in helping to protect the Chesapeake Bay, in spite of efforts to cut 

funding for the important programs there, so really appreciate 

that. 

I actually don’t think that the duplication that is presented here 

between the Clean Water Act and FIFRA is completely accurate. 

FIFRA is designed to regulate the use and application of pesticides 

in general, and set standards, and certainly it sets standards for 

applications in relation to aqueous situations, in addition to land 

applications. But, really, the Clean Water Act serves a different 

purpose; it is really designed to protect our Nation’s water quality 

by minimizing discharges of pesticides and other pollutants. 

So, I think, particularly in a place like the Chesapeake Bay, 

where we have a high water table and much of the landscape is 

vulnerable to stormwater runoff and other impacts, that the provisions of the Clean Water Act and the requirements that are associated with it provide an added element of assurance that pesticides 

are not going to get into the waterways and have adverse impacts 

on those water bodies. 

Senator CARDIN. I thank you for that because the FIFRA statute 

deals with labeling, deals with other issues and the Clean Water 

Act deals with the quality of water in our Nation, so they have different standards to judge the regulatory activities. And we know 

that farming activities is the largest single source of pollutants entering the Bay. It is not the largest increase that comes from runoff, but the largest single source is from farming, so, therefore, it 

is critically important we try to minimize the best that we can, and 

the Clean Water Act certainly has been important in doing that. 

Would you agree with that? 

Mr. LYONS. Yes, I certainly do, Senator. I think it played an important role and I think we are seeing the benefits of that. I might 

mention, if I could actually put in the record, a recent Washington 

Post opinion by the editorial board, March 7th, that says why the 

Chesapeake Bay is the best in the world. It talks to the improvements that have been made over many years of effort to improving 

water quality and the health of the Chesapeake Bay, and I think 

it is a reflection of the fact that proper application of tools. I see 

51 

the Clean Water Act as a tool for addressing water quality concerns as well as other standards, is important. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

52 


30329.070

The Washington Post 

® Opinfon 

Why the Chesapeake Bay 

is the best in the world 

Correction: An earlier ver·sion of this editorial incorrectly reported that Chesapeake Bay "nutrient 

trading" was already taking place. Pollution trading is still in the planning stages in Maryland. This version 

has been updated. 

March 7 

NOT SO long ago, the Chesapeake Bay seemed unsaveable. Punished by years of population growth and 

polluted runoff, the bay's waters were murky. Crucial species were dying off, and oxygen had become so scarce 

that toxic "dead zones" proliferated. Because water flowed from so many states into the largest watershed on 

the Eastern Seaboard, an effective response was hard to imagine. 

Yet now, nearly a decade after the federal government stepped in with a not-particularly-onerous conservation 

effort, the bay is rebounding in a record-setting way. "We provide conclusive evidence that reducing 

discharges of nitrogen, phosphorus and other pollutants into the bay has produced the largest resurgence of 

underwater grasses ever recorded anywhere," the authors of a new study write. "This success shows tbat 

coastal ecosystems are resilient and that concerted efforts to reduce nutrient pollution can result in 

substantial improvements." 

1be study reported that bay grasses have rebounded fourfold since 1984, including in areas that have not 

hosted submerged vegetation in years. Underwater grasses provide a crucial habitat for a wide range of 

aquatic life, from scahorses to snails. Maryland's famous blue crabs feed on the life that tbe grasses support. 

The resurgence in underwater vegetation is just one benefit of tbe "pollution diet" tbe Environmental 

Protection Agency created for the bay's watershed, which includes six states and the District. By also altering 

urban surfaces to prevent excessive runoff and upgrading wastewater treatment plants, the plan has helped 

cut nitrogen pollution 23 percent and phosphorus pollution 8 percent. "Nutrients overfertilize the bay, 
53 


30329.071

creating huge blooms of algae that die and deplete oxygen from the water," the authors explained. These 

nutrients also contribute to murkiness that blocks the sunlight grasses need. 

Part of what makes the Chesapeake Bay program distinct from more traditional pollution control efforts is its 

proposed idea of "nutrient trading," a flexible approach to meeting the watershed's pollution diet. This allows, 

say, a wastewater plant that would have to spend a great deal of money complying with pollution limit' to pay 

farmers to plant cover crops that reduce their nutrients instead. In this way, the easiest pollution reductions 

come first and the expensive ones are given more time. 

President Trump bas repeatedly insisted that he wants "crystal clear water." The Chesapeake Bay's cleanup 

program is beginning to produce just that, and it promises to demonstrate the value of efficient, market-based 

pollution controls, too. Yet Mr. Trump zeroed out the program in his budget. Thankfully, Congress appears 

poised to maintain fi.mding. 

Notwithstanding its recent progress, the bay still suffers from significant oxygen-depleted dead zones, 

excessive nitrogen runoff and other problems. Farm pollution from fertilizer and manure continues to be a 

major challenge. A sustained federal commitment is essential. 

Read more: 

The Post's View: The Trump administration's attack on the Chesapeake Bay 

Steve Kline: The Trump administration's dismal forecast for the Chesapeake Bay 

Brian E. Frosh, Mark R. Herring and Karl A. Racine: A poison pill for the Chesapeake Bay 

Letters to the Editor: It's about autonomy, not thwarting progress on the Chesapeake Bay 

The Post's View: Don't ignore a major threat to the Chesapeake Bay 

~ 12 Comments 
54 

Senator CARDIN. Always appreciate the opportunity of including 

the Chesapeake Bay in our record. 

Let me ask you one last question, which sometimes the reason 

for trying to get an exemption from the Clean Water Act deals with 

emergency situations where you have urgent issues that need to be 

dealt with quickly because of the health concerns that are brought 

about by some insects or invasions, things like that. 

Do you see the Clean Water Act regulations and the current applications of the law inconsistent with emergency response? 

Mr. LYONS. No, absolutely not, Senator. In fact, EPA developed 

a program to deal with emergency situations. I mean, zika would 

be a great example of that. Under those circumstances, an applicator can perform its pest control activities without having to wait 

for EPA approval for the application, so there is no inconsistency 

there. 

Senator CARDIN. Thank you. 

Appreciate it, Mr. Chairman. 

Senator BARRASSO. Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman. I thank you for calling this hearing today and I appreciate all of the witnesses coming 

to share your time and your expertise with us on these important 

issues. 

This bill encompasses a variety of priorities that I and many 

members of this Committee have labored over for, in some cases, 

many years, and I am glad to see the Committee recognizes that 

these commonsense solutions do need to move forward. 

The ACRE Act represents relief for ag producers from burdensome regulations, relief from regulations that do not offer more environmental protection and relief from regulations that have become duplicative and unnecessarily tie the hands of our producers. 

I am especially pleased to see included in this legislation policies 

that I have championed in this Committee for many years, and this 

includes addressing what I believe is a duplicative permitting of 

pesticides under FIFRA and the Clean Water Act. I would remind 

my colleagues that this is an issue I agreed with the Obama administration’s EPA on, and it continues to be a concern in farm 

country. 

Additionally, the ACRE Act also includes my legislation to provide regulatory relief for farmers and ranchers with above-ground, 

on-farm fuel storage. Intended for major oil refineries, the Spill 

Prevention, Control, and Countermeasure, or the SPCC, Rule 

would affect the amount of fuel producers can store on their land. 

And I certainly appreciate that the last WRDA bill included flexibility for producers, but more does need to be done. 

Finally, the ACRE Act includes the Fair Agricultural Reporting 

Method, or the FARM Act, which would provide greater certainty 

for ag producers by eliminating the burdensome reporting requirements for animal waste emissions under CERCLA. 

As of this morning, there are 37 cosponsors, Democrats and Republicans, on this stand-alone legislation. Our farm and ranch communities are in tough economic climates, and this bill before us 

does cut through the cumbersome red tape and enables our ag producers to continue to support their families and also to feed this 

hungry world. 

55 

Director, it is my understanding that reporting animal waste 

emissions under CERCLA provides no environmental benefit. Do 

you agree with that? 

Mr. MIYAMOTO. Mr. Chairman, Senator, I do. We have operated 

regulatory frameworks for agriculture for quite some time now. The 

Clean Air Act is available to address air quality concerns. CERCLA 

was never a part of this until very recently, and the simple act of 

reporting does nothing to address any environmental concern. 

Senator FISCHER. Thank you. Can you please explain to the Committee the current regulatory framework livestock producers must 

comply under, and specifically under the bill before us, the ACRE 

Act and, subsequently, the FARM Act, do certain providers still 

have to comply with EPCRA reporting requirements? 

Mr. MIYAMOTO. Mr. Chairman, Senator, they do. In confined animal feeding operations, they would still have a duty to report 

under EPCRA and comply with the regulatory requirements there. 

Senator FISCHER. So, just to be clear, producers and our large 

animal feeding operations, they still must comply with EPCRA, the 

Clean Water Act, and State regulations? 

Mr. MIYAMOTO. Mr. Chairman, Senator, that is correct. 

Senator FISCHER. Thank you. 

Director, in your testimony, you discuss the duplicative permitting process of pesticides under FIFRA and the Clean Water Act, 

and this process creates unnecessary resource burdens and challenges for pesticides, registrants, and users, including the agriculture community. This is why I have cosponsored legislation that 

would clarify the intent of the law and eliminate the Clean Water 

Act permit requirement. Can you please speak to the impact on 

farmers that are subjected to acquire a Clean Water Act permit? 

Mr. MIYAMOTO. Mr. Chairman, Senator, again, thank you for the 

question. I can speak to that to a degree. We have been operating 

our pesticide application regulatory program in conjunction with 

NPDES since 2009 or 2010, and it has just required a whole bunch 

more training. In that entire amount of time, I do not believe that 

our State partners at the Department of Environmental Quality 

have regulated pesticide applicators under NPDES permit requirements, meaning I don’t think they have taken regulatory action 

against any of those applicators. 

We, on the other hand, have taken regulatory action against applicators that are not following the appropriate label. So, in essence, what it has become for us is just an exercise that we go 

through; make sure that you have your certified pesticide applicator’s license, make sure that you are in line with either your major 

or minor NPDES pesticide general permit, make sure you have everything in order, and then go out and do your work. But when it 

comes to the regulation, FIFRA and the Department of Ag is where 

that resides. 

Senator FISCHER. Thank you, sir. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you, Senator Fischer. 

I am going to ask unanimous consent to enter for the record a 

number of letters of support and written testimony from groups 

who support various elements of the ACRE Act, including the National Agriculture Aviation Association, Wyoming Stock Growers 

56 

Association, Agriculture Retailers Association, American Mosquito 

Control Association, National Pest Management Association, which 

includes more than 7,000 member companies. 

Without objection, they are admitted to the record. 

[The referenced information follows:] 

57 


30329.044

April 5, 2018 

The Honorable John Barrasso 

Chairman Senate Committee 

on Environment & Public Works 

410 Dirksen Senate Oftice Building 

Washington, DC 20510 

Dear Chairman Barrasso and Ranking Member Carper, 

The Honorable Tom Carper 

Ranking Member Senate Committee 

on Environment & Public Works 

456 Dirksen Senate Office Building 

Washington, DC 20510 

On behalf of the undersigned organizations, we would like to convey our support for critical provisions 

within the Agriculture Creates Real Employment "ACRE" Act. relating to duplicative environmental 

pennitting under the National Pollutant Discharge Elimination System (NPDES). This vital measure affects 

our nation's farmers and ranchers, environmental resources, and the protection of public health. 

As you are aware, for almost forty years, the Environmental Protection Agency (EPA) and pesticide 

applicators operated exclusively under the Federal Insecticide, Fungicide, and Rodenticide Act (FJFRA) with 

pesticides reviewed and regulated for use with strict instructions on the EPA approved product label, 

reflecting a thorough EPA review and accounting of impacts to water quality and aquatic species. 

The ACRE Act would address a 2009 court ruling mandating Clean Water Act NPDES permits for pesticide 

applications already regulated by FIFRA for water quality and aquatic effects. As such, Section 6 of the 

ACRE Act prohibits the EPA from requiring such additional permits under NPDES for a pesticide 

application ti·om a point source, as long as the application is already approved under FIFRA. 

As the Director of the Wyoming Department of Agriculture noted at the March 14 Committee on 

Environment & Public Works March 14 hearing, "After experiencing pesticide regulation under FIFRA alone 

compared to regulation under FIFRA with the additional requirements of the NPDES program, it is clear 

that the NPDES program adds nothing/or environmental protection ... Pesticides are effectively regulated at 

every step from formulation to on-the-ground application by FIFRA." 

While the NPDES pesticide general permit burden lacks any meaningful environmental benefit, it docs 

impose costs on thousands of small pesticide applicator businesses and farms, as well as the municipal, 

county, state and federal agencies responsible for protecting natural resources and public health. This was 

noted by representatives of the American Farm Bureau Federation who testified at the March 14 hearing 

stating that "The general permits are now in place for over 360,000 new permittees brought within the 

purview of EPA's NPDES program. This program carries significant regulatory and administrative burdens 

for states and the regulated community beyond merely developing and then issuing permits." For example, 

in Wyoming alone, permit requirements have redirected up to 5% of Mosquito District funds annually from 

their public health mission, and costs for applications have increased 5 to I 0-fold for some Districts. 

Furthermore, the NPDES permitting processes may impact or delay treatments in situations involving 

communities adversely impacted by acute or sporadic outbreaks of mosquitoes. NPDES processes would 

hinder those areas from initiating a timely response to effectively protect the public's health and welfare in 

situations in which there is no officially declared public health emergency. 

ln summary, the current NPDES general pesticide permit program adversely impacts the use of critical 

pesticides in protecting human health and the food supply from destructive and disease-carrying pests, and 

in managing invasive weeds to keep open waterways and shipping lanes, to maintain rights of way for 

transportation and power generation, and in preventing damage to forests and recreation areas. 
58 


30329.045

The time and funds expended on redundant permit compliance drains public and private resources while 

providing no measurable benefit to the environment 

In an effort to address unnecessary, duplicative regulations and provide certainty to impacted natural 

resources, public health, and our nation's farmers and ranchers, we strongly endorse these NPDES 

provisions within the Agriculture Creates Real Employment "ACRE" Act We look forward to the 

Committee's timely approval of this measure so it may be favorably acted on by the U.S. Senate. Thank you 

for your consideration. 

Agricultural Retailers Association 

American Farm Bureau Federation 

American Mosquito Control Association 

American Soybean Association 

Aquatic Plant Management Society 

Associated Executives of Mosquito Control (NJ) 

Association of Equipment Manufacturers 

California Specialty Crops Council 

Crop Life America 

Council of Producers and Distributors of 

Agrotechnology 

Dairy Producers of New Mexico 

Delaware Mosquito Control Section 

Exotic Wildlife Association 

Georgia Mosquito Control Association 

Golf Course Superintendents Association of 

America 

Idaho Mosquito and Vector Control Association 

Illinois Mosquito & Vector Control Association 

Louisiana Mosquito Control Association 

Montana Mosquito and Vector Control 

Association 

Mosquito & Vector Control Association of CA 

National Alliance of Forest Owners 

National Alliance of Independent Crop 

Consultants (NAICC) 

National Association of Landscape Professionals 

National Association of Wheat Growers 

National Agricultural Aviation Association 

National Cotton Council 

National Corn Growers Association 

Sincerely, 

National Council of Farmer Cooperatives 

National Onion Association 

National Pest Management Association 

National Potato Council 

National Sorghum Producers. 

New Jersey Mosquito Control Association 

North Carolina Mosquito and Vector Control 

Association 

North Central Weed Science Society 

Northeastem Mosquito Control Association 

Northeastem Weed Science Society 

Northwest Mosquito and Vector Control 

Association 

Ohio Mosquito & Vector Control Association 

Oregon Mosquito and Vector Control 

Association 

Pennsylvania Vector Control Association 

Professional Dairy Managers of Pennsylvania 

Responsible Industry tor a Sound Environment 

(RISE) 

Southern Weed Science Society 

Texas Mosquito Control Association 

Upstate Niagara Cooperative, Inc. 

USA Rice 

USApple Association 

Utah County Mosquito Abatement 

Washington State Potato Commission 

Weed Science Society of America 

Western Society of Weed Science 

Wyoming Mosquito Management Association 
59 


30329.046

Mosquito Abatement Districts 

Ada County Mosquito Abatement (ID) 

Adams County Mosquito Control (WA) 

Alameda County Mosquito Abatement District 

(CA) 

Alamosa Mosquito Control District (CO) 

Anastasia Mosquito Control District (FL) 

Animas Mosquito Control District (CO) 

Antelope Valley Mosquito & Vector Control 

District (CA) 

Ascension Parish Mosquito Control (LA) 

Atlantic County Office of Mosquito Control 

(NJ) 

Bannock County Mosquito and Vector Control 

Assoc. (I D) 

Bay County Mosquito Control (MI) 

Beach Mosquito Control District (FL) 

Bear Lake Mosquito Control, LLC (ID) 

Benton County Mosquito Control District, (WA) 

Bergen County Mosquito Control New Jersey 

Box Elder Mosquito Abatement District (UT) 

Burney Basin Mosquito Abatement District 

(CA) 

Butte County Mosquito and Vector Control 

District (CA) 

Cache Mosquito Abatement District (UT) 

Caddo Parish Mosquito Control (LA) 

Calvert County Mosquito Control (MD) 

Camano Island Mosquito Control (W A) 

Camden County Mosquito Extermination 

Commission (NJ) 

Cameron Parish Mosquito Abatement District 

(LA) 

Canyon County Mosquito Abatement District 

(!D) 

Cascade County Weed & Mosquito Division 

(MT) 

Chambers County Mosquito Control (TX) 

Charlotte County Mosquito & Aquatic Weed 

Control (FL) 

Chatham County Mosquito Control (GA) 

Churchill County Mosquito, Vector and Noxious 

Weed Abatement District (NV) 

Clark County Mosquito Control District (WA) 

Coachella Valley Mosquito & Vector Control 

District ( CA) 

Colusa Mosquito Abatement District (CA) 

Compton Creek Mosquito Abatement District 

(CA) 

Consolidated Mosquito Abatement District (CA) 

Contra Costa Mosquito and Vector Control 

District (CA) 

Cumberland County Mosquito Control Division 

(NJ) 

Curlew Mosquito Control District (W A) 

Douglas County Mosquito Abatement District 

(NV) 

East Side Mosquito Abatement District (CA) 

Edwards Mosquito Abatement District (!D) 

Essex County Mosquito Control (NJ} 

Florida Keys Mosquito Control District (FL} 

Fort Henry Mosquito Abatement District (ID) 

Franklin County Mosquito Control District 

(WA) 

Fresno Mosquito and Vector Control District 

(CA) 

Gainesville Mosquito Control (FL) 

Gem County Mosquito Abatement District (ID) 

Glenn County Mosquito & Vector Control 

District ( CA) 

Gloucester County Mosquito Control (NJ) 

Grand River Mosquito Control District (CO) 

Grant County Mosquito Control District (NJ) 

Hill County Weed & Mosquito District, 

Montana (MT) 

Iberia Parish Mosquito Abatement District (LA) 

Indian River Mosquito Control District (FL) 

Kings Mosquito Abatement District (CA) 

Lee County Mosquito Control District (FL) 
60 


30329.047

Madera County Mosquito & Vector Control 

District (CA) 

Manatee County Mosquito Control District (FL) 

Marin/Sonoma Mosquito & Vector Control 

District ( CA) 

Mason Valley Mosquito Abatement District 

(NV) 

Master Mosquito Control, LLC (NH) 

Merced County Mosquito Abatement District 

(CA) 

Mercer County Mosquito Control (NJ) 

Metropolitan Mosquito Control District (MN) 

Miami Dade County Mosquito Control (FL) 

Michigan Mosquito Control Association (MI) 

Middlesex County Mosquito Extermination 

Comm. (NJ) 

Mosquito Control Services, LLC (LA) 

Municipal Mosquito (TX) 

Napa County Mosquito Abatement District (CA) 

Nassau County Mosquito Control Unit (NY) 

North Shore Mosquito Abatement District (IL) 

Northern Salinas Valley Mosquito Abatement 

District (CA) 

Ouachita Parish Mosquito Abatement District 

(LA) 

Orange County Mosquito & Vector Control 

District (CA) 

Orange County Florida Mosquito Control (FL) 

Owens Valley Mosquito Abatement Program 

(CA) 

Pasco County Mosquito Control District (FL) 

Pine Grove Mosquito Abatement District (CA) 

Placer Mosquito and Vector Control District 

(CA) 

Prince William Mosquito Forest Pest 

Management (VA) 

Sacramento County -Yolo County Mosquito & 

Vector Control District (CA) 

Saginaw County Mosquito Abatement 

Commission (MI) 

Salt Lake City Mosquito Abatement District 

(UT) 

San Gabriel Valley Mosquito & Vector Control 

Dist. (CA) 

San Joaquin County Mosquito & Vector Control 

Dist. (CA) 

San Mateo County Mosquito & Vector Control 

Dist. (CA) 

Shasta Mosquito and Vector Control District 

(CA) 

South Salt Lake Valley Mosquito Abatement 

District (UT) 

South Walton County Mosquito Control District 

(FL) 

SouthLake Mosquito Abatement District (IL) 

Southwest Mosquito Abatement & Control 

District (UT) 

St. Tammany Parish Mosquito Abatement (LA) 

Sussex County Office of Mosquito Control (NJ) 

Sutter-Yuba Mosquito & Vector Control District 

(CA) 

Tehama County Mosquito & Vector Control 

District ( CA) 

Tulare Mosquito Abatement District (CA) 

Turlock Mosquito Abatement District (CA) 

Uintah Mosquito Abatement District (UT) 

Vermilion Parish Mosquito Control (LA) 

Warren County Mosquito Extermination 

Commission (NJ) 

Weber Mosquito Abatement District (Ogden, 

Utah) 

West Baton Rouge Mosquito Control (LA) 

West Side Mosquito & Vector Control District 

(CA) 

West Umatilla Mosquito Control District (OR) 

Yakima County Mosquito Control District (WA) 
61 


30329.048

March 13,2018 

RE: More than 50 Organizations Oppose the "Agriculture Creates Real Employment (ACRE) Act" 

Dear Chairman Barrasso and Ranking Member Carper, 

Our organizations, along with the millions of members and supporters we represent, write 

to register our strong opposition to the so-called "Agriculture Creates Real Employment 

(ACRE) Act". This package of damaging bills would not support small farmers. Instead, it is an 

obvious giveaway to wealthy agribusinesses and other large corporations at the expense of the 

health of nearby communities, important environmental safeguards, and imperiled species. The 

ACRE Act's provisions are individually and collectively dangerous. Many drew strong opposition 

when they were introduced in the past. just as they do now. Not every organization signed on to 

this letter has worked on nor has a position on each of these sections, but we are all opposed to the 

overall package. 

Specifically, this bill includes the following harmful provisions: 

Section 3 exempts even the largest industrial animal production facilities from reporting enormous 

amounts dangerous substances, such as ammonia and hydrogen sulfide, under the Comprehensive 

Environmental Response, Compensation and Liability Act (CERCLA). Other industrial facilities 

must report these emissions. CERCLA requires industrial sources of harmful air pollution to report 

their emissions when threshold amounts are reached. This exemption makes no sense when these 

harmful substances have the same effect on human health, whether emitted from an industrial 

livestock operation or some other large facility. 

Section 4 exempts sea urchins and sea cucumbers from export licensing requirements under the 

Endangered Species Act (ESA). This would undermine the U.S. Fish and Wildlife Service's efforts to 

monitor and ensure that these species are not overexploited and would hamper the Service's ability 

to enforce reporting requirements under the Convention on International Trade in Endangered 

Species (CITES). At a time when the United States must continue to represent the gold standard for 

fulfilling this vital treaty, this amendment threatens to severely handicap our ability to monitor 

trade in highly coveted ocean species. 

Section 5 alters the rules for the baiting of migratmy birds to reduce liability that can result from 

certain agricultural practices such as mowing. discing, or rolling fields. ln conjunction with hunting 

on these fields, these practices can be considered baiting under current rules. Any conflict or 

uncertainty surrounding agricultural practices and hunting should be addressed in a way that does 

not risk subverting longstanding efforts to control unlawful baiting and advance migratory bird 

conservation. 

Section 6 would gut important Clean Water Act safeguards that protect our streams, rivers, and 

lakes from excessive pesticide pollution. This "Poison Our Waters" provision would allow pesticides 

to be sprayed into water bodies without any meaningful oversight due to the fact that the Federal 

Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not require tracking of such pesticide 

spraying. There is no need to change these existing, commonsense Clean Water Act protections 
62 


30329.049

because the system has been working well since the safeguards were put in place six years ago and 

alarmist predictions from pesticides manufacturers have failed to bear any fruit. 

Section 7 bars the U.S. Environmental Protection Agency (EPA) from sharing basic information 

about large-scale industrial agricultural operations that generate significant loads of pollution. The 

bill would attempt to conceal information about waste management and facilities' proximity to 

waterways, making it difficult for states and their residents to understand where health-harming 

pollution is coming from. The bill's new secrecy provision would require EPA to hide already 

publicly available information that is vital for protecting the surrounding communities against 

environmental hazards. Large livestock facilities generate an enormous amount of wastesometimes as much waste as an entire city. The waste, which may contaminate nearby waters, 

contains bacteria and viruses, pharmaceuticals, and nitrogen and phosphorus that can cause 

oxygen-depleting and toxic algal outbreaks. The public has a right to know if these threats are 

lurking in the waters on which we depend. 

Section 8 bars the EPA from using a readily-available and cost-effective method (aerial 

surveillance) to investigate pollution discharges that violate health-and-safety related pollution 

controls, unless EPA first obtains a federal court order or permission from the facility. There is no 

reason to believe that aerial photography is unreliable evidence that operations are violating their 

clean water obligations. The bill's sweeping language is so broad, it could even prevent EPA 

enforcement staff from using Google Maps' satellite photos to look for huge livestock factories that 

are polluting nearby waterways and fail to obtain proper permits for their discharge. This will 

increase burdens on the courts, hinder enforcement, and make it easier for large-scale industrial 

agricultural operations to pollute waters with impunity. 

Section 9 aims to reinstate a depredation order for Double-crested Cormorants, a native fish-eating 

bird, overriding a federal court ruling that revoked the order due to a lack of proper environmental 

review. The order, in effect since 1998 for thirteen states, allowed for broad takes of cormorants 

through lethal culls in fish farms and hatcheries without a permit. The U.S. Fish and Wildlife Service 

extended the order every five years, but without monitoring the status of cormorants or seriously 

considering updated scientific information and environmental impacts. 

Section 10 would make it even more difficult for the EPA to enforce oil spill prevention and 

response requirements on large-scale industrial agriculture operations. The Clean Water Act 

requires EPA to establish rules specifying the steps that many facilities must take to prevent and 

respond to oil spills. And under current regulations, farms are already treated more leniently than 

other industrial operations. For instance, farms are allowed to handle more oil than other facilities 

before having to comply with EPA's precautionary rules even though farms are not inherently safer 

than other facilities. And there is also no evidence that oil spilled by farms is somehow less 

damaging to human health and the environment than oil spilled by other polluters. Yet this 

provision ignores the findings of a congressionally-mandated study and would enable even larger 

agricultural operations to qualify for an exemption from the protections against oil spills that other 

facilities must follow. This wholly irresponsible provision will undoubtedly lead to more oil spills in 

our waterways. 
63 


30329.050

Section 11 seemingly seeks to give the U.S. Fish and Wildlife Service (FWS) a new legal obligation 

to expedite taking permits requested by the U.S. Department of Agriculture's Animal and Plant 

Health Inspection Service (APHIS) for eagles, migratory birds, and other "nuisance species". This 

could require FWS to prioritize facilitating APHIS's lethal response requests over FWS's other 

conservation duties including advancing wildlife conflict avoidance measures and wildlife 

conservation. 

Instead of actually helping farmers and farming communities, this bill would make it easier for 

industrial agriculture operations and others to ignore laws meant to protect communities and the 

environment from the toxic pollution and contamination. We strongly urge the committee to reject 

this legislation. 

Thank you for your consideration. 

Sincerely, 

NATIONAL ORGANIZATIONS: 

Natural Resources Defense Council 

Earth justice 

League of Conservation Voters 

Sierra Club 

Alliance of Nurses for Healthy Environments 

National Latino Farmers & Ranchers Trade Association 

Hip Hop Caucus 

Waterkeeper Alliance 

Clean Water Action 

National Audubon Society 

Endangered Species Coalition 

American Bird Conservancy 

Power Shift Network 

Center for Biological Diversity 

Natural Heritage Institute 

Friends of the Earth 

Born Free USA 

Wolf Conservation Center 

Save EPA 

Animal Welfare Institute 

REGIONAL ORGANIZATIONS: 

Endangered Habitats League 

Southern Environmental Law Center 

Gulf Restoration Network 

WildEarth Guardians 

League of Women Voters Upper Mississippi River Region lnterleague Organization (ILO) 

Western Watersheds Project 

Maryland Latino Farmers & Ranchers Trade Association 
64 


30329.051

Bluestem Communications 

Save the Manatee Club 

STATE-BASED ORGANIZATIONS (listed by state): 

Cahaba River Society- Alabama 

Environmental Protection Information Center- California 

Klamath Forest Alliance- California 

Turtle Island Restoration Network- California 

Endangered Habitats League- California 

Delaware Ecumenical Council on Children and Families- Delaware 

Prairie Rivers Network- Illinois 

Illinois Stewardship Alliance- Illinois 

The Land Connection- Illinois 

Illinois Council of Trout Unlimited -Illinois 

Kentucky Waterways Alliance - Kentucky 

Passaic River Coalition- New jersey 

Save The River I Upper St. Lawrence Riverkeeper- New York 

WE ACT for Environmental justice- New York 

Pennsylvania Council of Churches Pennsylvania 

Tennessee Clean Water Network- Tennessee 

TN Environmental Council -Tennessee 

Puget Sound keeper- Washington 

OVEC-Ohio Valley Environmental Coalition- West Virginia 

Friends of Blackwater, Inc.- West Virginia 
65 


30329.133

' 

I • WYOMINGSTOCKGROWERSASSOCIATION 

II Guardian of Wyoming's Cow Country since 1872 

-

President~ Dennis Sun, Casper First Vice President~ Scott Sims, McFadden 

Region I Vice President- JD Hilt Ranchester Region II Vice President- Steve Paisley, VVheatland 

II Region Ill Vice President- Mantha Philips, Casper Region IV Vice President- Brad Mead, Jackson 

Region V Vice President- Reg Philips, Dubois Executive Vice President- Jim Magagna, Cheyenne 

Young Producers Assembly- Kendall Roberts, Cheyenne 

March 10, 2018 

TO: Senator John Barrasso, Chairman 

Senator Thomas Carper, Ranking Member 

Senate Committee on Environment & Public Works 

FROM: Jim Magagna, Executive Vice President, Wyoming Stock Growers Association 

RE: Agriculture Creates Real Employment Act (ACRE) 

TESTIMONY 

Chairman Barrasso, Ranking Member Carper and Members of the EPW Committee: 

The Wyoming Stock Growers Association (WSGA) appreciates this opportunity to provide 

testimony on the Agriculture Creates Real Employment Act. WSGA is generally supportive of all 

sections of the bill. However, we will focus our testimony on Section 3 (CERCLA), Section 10 

(SPCC) and Section 11 (Predatory Animals) as these three Sections have the greatest impact on 

Wyoming ranchers and the most urgent need for Congressional action. 

WSGA, with a current membership of over 1100, has represented the livestock industry in the 

state since 1872. Throughout our history we have responded to both major events impacting 

the ranching industry while seizing upon opportunities to enhance the economy and 

sustain ability of our producers. While historically weather and cattle rustling may have been 

the greatest threats faced by our members, today our most pervasive threat is excessive 

government regulation. 

SECTION 3. Exemption from Certain Notice Requirements and Penalties. 

This Section would release the Environmental Protection Agency (EPA) from the current Court 

mandate making continuous emissions reporting requirements under the Comprehensive 

Environmental Response, Compensation, and Liability Act (CERCLA) applicable to releases of 

animal waste from our farms and ranches. 

When Congress enacted CERCLA in 1980, it clearly did not intend for family farms to be treated 

as hazardous waste cleanup sites. CERCLA was enacted to provide for cleanup of severe 

industrial chemical toxic waste dumps and spills, like oil spills and chemical tank explosions. 

With this in mind, in 2008, tbe EPA finalized a rule to exempt most agricultural operations from 

CERCLA reporting, recognizing that low-level continuous emissions of ammonia and hydrogen 

sulfide from livestock are not "releases" that Congress intended to regulate. Moreover, upon 

"Shaping and Living The Code of The West" 

P.O. BOX 206, CHEYENNE, WY 82003• PH: 307.638.3942 • FX: 307.634.1210 

EMAIL: INFO@WYSGA.ORG •WEBSITE: WWW.WYSGA.ORG • BLOG: WWW.REALRANCHERS.COM 
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Page 2 of3 

being sued in 2009, the Obarna Administration spent eight years defending this Bush-era 

exemption. 

However, in April2017, the D.C. Circuit Court vacated EPA's 2008 exemption, concluding that 

the statutes are unambiguous and that EPA did not have the authority to issue the exemption rule. 

Since that time, we have had to rely on the Court for delay in issuing a final Order to preclude 

the immediate need for filings. 

By one suggested measure, this continuous reporting requirement would apply to all livestock 

operations involving two hundred six (206) or more head of cattle. This standard would 

incorporate the vast majority of commercial livestock operations in Wyoming. As you would 

clearly understand Mr. Chairman, the task of measuring the toxic release from hundreds of 

cattle dispersed across thousands of acres on the typical Wyoming ranch defies reality. 

In addition, given the diverse patterns of private state and federal land ownership, the 

pasturing of non-owned livestock on leased or permitted lands and the intermingling of 

livestock ownership on common allotments, there is real question as to which entity is 

responsible for the reporting. To date, EPA has been unable to answer that question for us. 

Congressional relief from the application of CERCLA as provided for in Senator Fisher's S 2421 

and the ACRE Act is of the utmost urgency. We are currently at the mercy of the willingness of 

the Court to continue to delay issuance of a final order. 

SECTION 10. Applicability of Spill Prevention, Control and Counter Measure Rule 

In our sparsely populated state, farm and ranch sites necessitating on-site fuel storage are often 

based in locations at great distances from fuel sources. Our members are dependent on being 

able to store adequate fuel supplies. While a few ranches have large underground storage 

capacities, most rely on above ground storage in 500 or 1000 gallon tanks. Several such tanks 

are often co-located in order to make it economical for fuel suppliers to deliver to these distant 

operations. 

Our industry has been dealing with this issue since 2002. While the Water Resources Reform 

and Development Act of 2014 provided significant relief from costly requirement for 

certification by a professional engineer, allowing self-certification for many storage facilities, 

remaining requirements are still disproportionate to the risks of a spill in many rural areas. 

SECTION 11. Predatory and other Wild Animals 

Current practices and policies of the FWS and APHIS regarding the issuance of permits for 

removal or harassment of avian species have become increasingly burdensome for livestock 

managers. Two particular examples illustrate the challenges that we face. 

"Shaping and Living The Code of The West" 

P.O. Box 206, CHEYENNE, WY 82001 • PH: 307.638.3942 • FX: 307.634.1210 

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Page 3 of 3 

It was a long-standing practice for APHIS Wildlife Services to obtain a permit for the harassment 

of eagles interfering with livestock operations in semi-confinement situations. APHIS-WS would 

then authorize individual ranchers to conduct necessary harassment activities under this 

permit. Within the past year Wildlife Services has advised us that they are no longer willing to 

authorize private parties to undertake actions under such permits due to the liability that this 

imposes on WS. They have suggested that private entities such as WSGA apply directly to FWS 

for a permit and become liable for any actions taken by our members who are authorized to 

operate under our permits. I can only describe this to you as "passing the buck." This is not an 

acceptable solution to addressing this pressing issue. 

A second example involves the taking of ravens. These abundant avian predators are one of 

the major threats to our western sage-grouse populations. They are often also a significant 

predator on small lambs. Currently, FWS permits limited takes in Wyoming under a permit to 

Wildlife Services. In 2015 the Wyoming Game & Fish Department submitted a request to FWS 

to liberalize the take of ravens. Specifically, the G&F requested consideration of "allowing the 

public to handle common raven damage/depredation on private land without the need for a 

permit". The G&F further expressed interest in a sport hunting season for ravens similar to the 

sport hunting season for crows and blackbirds. 

The FWS responded to our G&F over a year later. They indicated that adding ravens to the 

crow depredation order would require formal rule-making and NEPA analysis. WSGA and other 

western states have requested that FWS and APHIS-WS jointly undertake the preparation of an 

EIS for such authorization. There has been no action on this request. 

WSGA thanks you for your commitment to addressing these issues. We stand ready to assist 

you in moving appropriate legislation through the ACRE act or any other vehicle. 

### 

"Shaping and Living The Code afThe West" 

P.O. Box 206, CHEYENNE, WY 82001 • PH: 307.638.3942 • Fx: 307.634.1210 

EMAIL: INFO@WYSGA.ORG •WEBSITE: WWW.WYSGA.ORG • BLOC: WWW.REALRANCHERS.COM 
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30329.136

P.m,. PWMIING I MANUFACTURERS 

INTERNATIONAL « 

PMI Board of 

Directors 

Peter Jahrling 

Sloan Valve 

Company 

President 

Nate Kogler 

Bradley 

Corporation 

VICe President 

Joel Smith 

Kohler Co. 

Secretary-Treasurer 

Paul Patton 

Delta Faucet 

Company 

fmmediate Past 

President 

Michael Miller 

LSP 

Todd Teter 

Moen, Incorporated 

Chip Way 

Lavelle Industries, 

Inc. 

Imants Stiebris 

Speakman 

Company 

March 6, 2018 

The Honorable Scott Pruitt 

Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Dear Administrator Pruitt: 

On behalf of Plumbing Manufacturers International (PM I), I am writing to urge you to 

continue to maintain and support the U.S. Environmental Protection Agency's highly 

successful WaterSense® program, a voluntary, public-private partnership that 

encourages voluntary reduction of water consumption by consumers and businesses. 

We were disappointed that the President's recent Fiscal Year 2019 budget calls for the 

program's elimination. 

EPA's WaterSense® program is an example of an effective collaboration between 

industry and the government in determining voluntary water efficient performance 

measures that can be used by consumers, industry, as well as states and local 

governments, and it is not duplicated by any other organization, private or public. It is 

universally supported by manufacturers and the public and private agencies charged 

with supplying water to American households and businesses. 

Plumbing products bearing the WaterSense label are 20 percent more water-efficient 

than standard products; provide measurable water savings results; and require 

independent, third-party certification. Over the past decade, WaterSense products have 

helped consumers save a cumulative 2.1 trillion gallons of water and over $14.2 billion in 

water and energy bills by using WaterSense-labeled products. The WaterSense label is 

critical to consumers seeking to identify and purchase a water-efficient plumbing 

product. 

PMI is the nation's leading trade association for plumbing product manufacturers. Its 

members produce 90 percent of the plumbing products sold in the United States and 

employ thousands of workers in over 70 locations in 25 states. Our member companies' 

plumbing products are found in the majority of homes, commercial buildings, schools, 

restaurants, manufacturing facilities, hospitals, and hotels across the nation. Examples of 

these products include, but are not limited to showerheads, kitchen and bathroom 

faucets, toilets, urinals, fixture fittings, sinks, tubs, and waste disposal systems. PMI 

member companies design and produce water-efficient products, without sacrificing 

performance, and continue to raise the bar in developing the most advanced waterefficient plumbing products. 

WaterSense Provides Benefits to Manufacturers and Consumers 

PMI and its members have proudly participated in the WaterSense program since its 

inception, when it was created during the George W. Bush Administration 2006. As a 
69 


30329.137

result of the program, plumbing manufacturers have developed more than 20,000 

models of WaterSense-labeled products for bathrooms (toilets, showerheads, faucets, 

and urinals) and commercial kitchens. Today, more than 1, 700 WaterSense partners, 

including manufacturers, water utilities, building groups, retailers, associations, and 

communities, collaborate with EPA to make this program successful. 

EPA's Role is Critical to WaterSense's Success 

The WaterSense program has created a new water efficiency benchmark for 

plumbing products that has allowed our members to confidently invest millions of 

dollars in product development and marketing initiatives, knowing that there will be 

a market for these products. 

The continued existence of the WaterSense program will continue to help create 

markets for future generations of water-efficient products and market opportunities 

for manufacturing and retail partners. 

Rather than having local officials make their own determination on the maximum 

amount of water used per flush by toilets and urinals and water used per minute by 

faucets and showerheads, WaterSense provides the national specifications agreed to 

by industry and guaranteed by the federal government. This has helped prevent 

states and municipalities from creating their own patchwork of new specifications 

that manufacturers and other industry stakeholders would have to meet, which 

would add to the costs of implementing and complying with such efforts. 

WaterSense serves as a de facto voluntary national standard that has allowed states 

to adopt more water efficient standards and be assured that there are products 

already available in the marketplace. 

Without the EPA in charge, there would be no national organization to oversee the 

use of the label that ensures consumers and builders that they're getting a product 

that works. 

WaterSense Enjoys Broad, Bipartisan Congressional Support 

The strong congressional support for EPA's WaterSense program is underscored by 

recent actions taken by the House and Senate Interior/EPA Appropriations 

subcommittees. Both chambers included the following FY18 appropriations report 

language rejecting the elimination of this important program: 

Senate report: "The Committee rejects the proposed elimination of the WaterSense 

program, and provides not less than the fiscal year 20171evel." Dept. of the Interior, 

Environment, and Related Agencies Senate Appropriations Bill. 

House report: "The Committee ... rejects the proposed elimination of the WaterSense 

program." H. Rep. 115-238- Dept. of the Interior, Environment, and Related Agencies 

Appropriations Bill. 

We look forward to meeting with you and your staff to discuss this program. In addition, 

our members would welcome the opportunity to host you at their facilities to see firsthand the ongoing technology research and development, as well as production of 

thousands of innovative, highly engineered plumbing products. 
70 


30329.138

PMI believes the WaterSense program is one of the most cost-effective nationwide 

programs geared toward saving money and protecting water resources. Its track record 

is impressive in promoting successful partnerships between public and private entities 

that protect and improve our nation's water resources. We urge you to preserve and 

fund the widely supported WaterSense program in FY19 and beyond. 

In the meantime, if you have any questions or need additional information, please 

contact me or Stephanie Salmon in the PMI Washington Office at ssalmondc@gmail.com 

or 202-452-7135. 

Sincerely, 

A:;e/1~ Kerry Stackpole, FASAE CAE 

CEO/Executive Director 

Plumbing Manufacturers International 

kstackpole@safeplumbing.org 

cc: David Ross, Assistant Administrator, EPA Office of Water 

lee Forsgren, Deputy Assistant Administrator, EPA Office of Water 

Ryan Jackson, Chief of Staff, EPA 

Sarah A. Greenwalt, Senior Counsel, EPA 

Andrew Sawyers, Director, EPA Office of Wastewater Management 

Veronica Blette, Chief, EPA WaterSense Branch 

Senator John Barrasso 

Senator Ben Cardin 

Representative Greg Walden 

Representative Frank Pallone 

Representative Ken Calvert 

Representative Betty McCollum 

Senator Lisa Murkowski 

Senator Tom Udall 

PMI Board of Directors 

PM! Members 

Bradley Corporation I BrassCraft Mfg. Co. I CSA Group I Delta Faucet Company I Dornbracht Americas I Duravit USA 

Fisher Manufacturing Company I Fluid master, Inc. I Franke I Global OEM I Globe Union Group, Inc. 1 Hansgrohe, Inc. 

Haws Corporation I IAPMO llnSinkErator I International Code Council Evaluation Service I Jing Mei Industrial (USA) 

KEROX I Kohler Co I Lavelle Industries, Inc. I LIXIL I LSP I Moen Incorporated I NEOPERL, Inc. I NSF International 

Pfister I Reliance Worldwide Corporation I Similar AG I Sloan Valve Company 1 Speakman Company 1 Symmons 

Industries, Inc. I T & 5 Brass and Bronze Works, Inc. I TOTO USA I Viega LLC I Water Pik, Inc. I WCM Industries, Inc. 
71 


30329.139

March 9, 2018 

The Honorable John Barrasso, Chairman 

The Honorable Tom Carper, Ranking Member 

Senate Committee on Environment and Public Works 

410 Dirksen Senate Office Building 

Washington, DC 2051 

Dear Chairman Barrasso and Ranking Member Carper, 

On behalf of members ofthe National Agricultural Aviation Association, I'm writing today to urge 

your support tor the Agriculture Creates Real Employment Act (ACRE), which removes the 

duplicative, unnecessary and burdensome National Pollutant Discharge Elimination System 

Pesticide General Permit (NPDES PGP) requirements for products already tested for water and 

environmental safety under the Federal Insecticide, Fungicide, and Rodenticide Act (FlFRA). 

A thorough environmental review is conducted by the Environmental Protection Agency for every 

commercial pesticide on the market, as required under FIFRA. These exhaustive reviews include 

hundreds of comprehensive studies taking many years and millions of dollars to accurately 

complete. Requiring a NPDES PGP for the application of pesticides over or near the Waters of the 

U.S. (WOTUS), is a duplicative burden for pesticide applicators and provides no environmental 

benefit. 

To the contrary, the delays, costs and liability involved with obtaining a NPDES PGP can hurt 

human health by leading to the decreased ability to eliminate threatening mosquitoes and other 

insects that carry Zika and other viruses. ln a briefing held in December by your committee 

multiple experts-from the EPA, mosquito control districts, state ag departments, etc.-spoke on 

this subject about the loss oflife, unneeded expense and environmental problems that are actually 

posed by this mandated court, not congressional, duplicative requirement that was passed down in 

2009. 

This committee passed similar legislation in ll4'h Congress and the House of Representatives has 

passed comparable legislation multiple times, including this year. Aerial applicators across the 

country, who are responsible for treating 71 million acres of cropland each year, look forward to 

the timely passage oflegislation that will eliminate duplicative NPDES PGP burdens. 

Thank you, again! 

Most sincerely, 

Andrew Moore 

Executive Director 

National Agricultural Aviation Association -1440 Duke Street- Alexandria, VA 22314 

Phone (202) 546-5722- Fax (202) 546-5726- www.aqaviation.org 
72 


30329.140

March 12, 2018 

The Honorable John Barrasso 

Chairman 

Committee on Environment & Public Works 

United States Senate 

410 Dirksen Senate Oftice Building 

Washington, D.C. 20510 

The l fonorable Tom Carper 

Ranking Member 

Committee on Environment & Public Works 

United States Senate 

410 Dirksen Senate Office Building 

Washington, D.C. 20510 

Dear Chairman Barrasso and Ranking \!ember Carper: 

On behalf of members of the :\gricultural Retailers i\.ssociation (i\IZ/\), I am writing in support of 

the ":\1,>riculturc Creates Real Employment Act" (ACRE). i\1\o'\ represents the nation's agricultural 

rci·dilers, also referred to as farm supply dealers, that provide essential goods and services to tarmers 

and ranchers such as pesticides, fertilizers, seed, fuel, crop scouting, soil testing, commercial 

applicator services, and the development of comprehensive nutrient management plans. 

This legislation includes important provisions to remove duplicative and unnecessary National 

Pollut<UJt Discharge Flimination System (:\!PDES) Pesticide Genera! Permit (PGP) requirements for 

products alrc,tdy heavily regulated by the U.S. Environmental Protection Agency (EP1\) under the 

11c,kral Jnscctlcide, Fung~cide, and Rodenticide Act (FTFRA). Under FIFRA, all pesticide products 

require years of extensive testing to demonstrate they ctn be safety used and applied according to an 

!1!'1\ approved label in a manner that poses no unreasonable risk to hum:ms or the environment, 

including impact on water quality and aquatic species. 

Requiring NPDI,~S PCPs provides no additional environmental protections beyond those already 

listed on the pesticide label, yet the regulatory burdens arc potentially depriving the public of the 

ecnnomic and health benefits from the use of important pest control products. In addition, this 

court ordered Clean Water Act (CW A) permit exposes all pesticide applicators, includmg mosquito 

control districts, ro the potential liability of CWA-based citizen lawsuits. Imposing costs on 

thousands of small application businesses and farms, as well as local, sL1te, and federal agencies 

responsible for protecting natural resources and public health can adversely impact and impede 

eff(Jrts to protect humm health, the environment, and the nation's food supply from destructive and 

disease-carrying pests and invasive weeds. 1his committee passed similar hi-partisan legislarion in 

the 114"' Congress. The U.S. House of Representatives has ;~lso passed legislation to address this 

important Issue on multiple occasions. 

The ACRE proposal also includes a provision to provide additional reforms to the applicability of 

I·:P !\'s Spill Prevention, Control, and Countenneasure (SPCC) regulations. i\.RA requests the 

committee modify the SPCC provisions by includmg t~rm supply dealers to provide them with 

similar regulat"ry relief as being considered for ttrmers. 'fl1e fuel or oil storage tanks 2t a t:ann 

supply dealer arc generally better maintained thm storage tanks located on a farm, include secondary 

containment, regularly inspected, and not located in environmentally scnsittve watershed areas. J\ 

1156 15th Street NW, Suite 500 1 Washington, D.C 20005 

Phone: (202) 457-0825 i Fax (202) 457-0864 

info@aradc.org 1 www.aradc.org 
73 


30329.141

Thc Honorable Jnhn I\;;rr:ISSU and 'l'iml c~'llcr 

,\lArch 12, 2018 

I',, i', c I 2 

farm supply dealer also has well trained employees 1hat are better equipped to deal with any potential 

spills, In addition, i\RA members typically maintain either general liability insurance coverage, 

commercial umbrella insurance coverage, or other insurance that would cover property or 

cqUtpment damage or pollution release, 

i\R,-\ suppnrts common-sense rcgubttons that w11l help protect the environment and community. 

\X'e ,tlso want federal rq,'lt!arions being unposed on the agricultural industry to be equitable, We look 

forward to working wtth the committee on prompt consideration and passage of this important 

k;~slatron, 'Thank you for olll your eft\xrs to mldrcss these critiCal issues impacting the nation's 

agrtcultural industry. 

f?KkJO.¥ 

Richard [),Gupton 

Senior Vice President, Public Policy & Counsel 
74 


30329.142

@NPMA 

National Management As::.oc1ation 

March 12.2018 

The Honorable John Barrasso 

Chairman 

Committee on Environment & Public Works 

United States Senate 

410 Dirksen Senate Office Building 

Washington, D.C. 20510 

The Honorable Tom Carper 

Ranking Member 

Committee on Environment & Public Works 

United States Senate 

410 Dirksen Senate Office Building 

Washington, D.C. 20510 

Re: NPMA Support for the Agriculture Creates Real Employment (ACRE) Act 

Dear Chairman Barrasso, Ranking Member Carper, and Members of the Senate Committee on 

the Environment and Public Works: 

The National Pest Management Association (NPMA), the only national trade group for 

professional stmctural pest management companies, appreciates the opportunity to provide written 

testimony to the Senate Committee on the Environment & Public Works regarding our support for 

the proposed Agriculture Creates Real Employment (ACRE) Act. and the inclusion of language 

that would exempt pesticide applicators from obtaining unnecessary National Pollutant Discharge 

Elimination System (NPDES) permits when applying EPA approved pesticides. 

NPMA, a non-profit organization with more than 7,000-member companies from around the 

world, including 6,000 U.S. based pest management companies, which account lor about 90% of 

the $7.6 billion U.S. commercial market, was established in 1933 to support the pest management 

industry. NPMA's member companies manage pests including rodents, ants, cockroaches, bed 

bugs, mosquitoes, spiders, stinging insects, termites and other pests in countless commercial. 

residential and institutional settings. 

The structural pest management industry views NPDES permitting as unnecessary and a potential 

impediment to perfom1ing valuable services for families and businesses throughout the nation. The 

structural pest management industry would like to take this oppot1unity to highlight our continued 

concerns. 

Currently, pest management professionals that apply even small amounts of pesticides in and 

around lakes, rivers and streams to protect public health and prevent potential disease outbreaks 

are required to obtain an additional, redundant and burdensome NPDES permit, prior to 

V;\ 220W f 703."35::?.303 
75 


30329.143

application. NPDES permits arc an unpractical and ineffective result of judicial activism and 

overreach in Nat 'I Cotton Council, eta!. v. EPA. 553 F~3d 927 (6th Cir. 2009), which overturned 

existing EPA policy. The court determined that under the Clean Water Act (CWA), pesticide 

applicators were required to obtain NPDES permits despite prior approval and use restrictions 

already imposed by the federal pesticide law (FIFRA). EPA strongly objected the courts 

conclusion ami persuasively argued that FIFRA approved products required no additional 

restrictions or additional regulatory burdens due to FIFRA 's statutory authority and the detailed 

pesticide approval process. 

Under FIFRA, all pesticides are reviewed and regulated for usc with strict instructions on the EPA 

approved product label. A thorough review and accounting of impacts to water quality and aquatic 

species is included in every EPA review. Requiring water permits for pesticide applications is 

redundant and provides no additional environmental benefit. 

Compliance with unnecessary NPDES water permits imposes duplicative resource burdens on 

thousands of pest management professionals. Pest management professionals are tasked with 

protecting public health from deadly diseases and vectors transmitted by mosquitos and other pests 

throughout the nation. Transmitted primarily by mosquitos, Zika virus, \Vest Nile virus. 

Chikungunya and Dengue Fever effect thousands of American each year. with no known vaccine. 

Pest management professionals are on the front lines of protecting the public through the usc of 

pesticides. Requiring pest management applicators to obtain an NPDES permit to prevent and 

react to potential outbreaks wastes valuable time against rapidly moving and potentially deadly 

pests. 

Usc pattems relevant to the structural pest management industry that may require an NPDES 

permit include: 

• Mosquito and Other Flying Insect Pest Control-to control public health/nuisance and 

other flying insect pests that develop or are present during a portion of their life cycle in or 

above standing or flowing water. Public health/nuisance and other flying insect pests in 

this use category include mosquitoes and black flies, 

\Veed and Algae Pest Control-to control weeds, algae, and pathogens that arc pests in 

water and at water's edge, including ditches and/or canals. 

• Animal Pest Control----to control animal pests in water and at water's edge. Animal pests 

in this usc category include fish, lampreys, insects, mollusks, and pathogens. 

Even more onerous requirements arc triggered if annual applications of pesticides to WOTUS 

exceed a predetermined threshold level. For the mosquito/flying insects use pattern, the annual 

threshold is 6,400 acres, and for both weed/algae and animal pest control, the threshold is 20 linear 

miles or 80 acres. Once the threshold is reached, additional reporting requirements become 

mandatory, including tiling a Notice oflntent (NOI) with the appropriate agency, rccordkccping 

of all applications to WOTUS and annual reporting. 

f 70?.:l'.iL103 
76 


30329.144

The Agriculture Creates Real Employment (ACRE) Act would clarify that federal law does not 

require the redundant and unfairly burdensome NPDES permit for already regulated pesticide 

applications. The pest management industry strongly urges you to remove this regulatory burden 

by voting YES on the ACRE Act. 

Sincerely, 

Andrew Bray 

Vice President of Public Policy 

National Pest Management Association 
77 

Senator BARRASSO. Mr. Miyamoto, across the Country, farmers 

and ranchers acknowledge some of their yield of crops, fish, livestock are going to be lost to predators of many varieties, and you 

made comment about that in your testimony. Farmer and ranchers 

depend on management tools like permits to eliminate predators to 

keep their livestock safe and to prevent excessive losses. 

In Wyoming, ranchers lose newborn calves, lambs to ravens, to 

eagles. Indiana residents grapple with damage to transportation infrastructure from beavers. In Delaware, the State Wildlife Service 

helps to prevent damage to coastal salt marsh habitat from geese, 

other migratory waterfowl. 

Could you just talk a little bit about the important role that permits play in predator management and the need for the agency to 

process permit applications efficiently? 

Mr. MIYAMOTO. Mr. Chairman, thank you. I think that what permits provide in this whole discussion of depredation and damage 

caused by it is balance. The permit process allows the regulating 

agencies to keep track of what is going on out in the landscape. It 

requires our producers to go in and seek permission for a certain 

action, to remove or relocate depredating what they would consider 

nuisance species. But the permitting process makes sure that is all 

accounted for and so that we can manage to an objective. 

Senator BARRASSO. I want to ask Mr. Yates if you have any additional thoughts on that and what you have seen in terms of getting 

the permits to deal with these issues. 

Mr. YATES. Certainly, Senator. Thank you for the question. Controlling wildlife damage is obviously a critical factor in maintaining 

the success of American agriculture, and permits are important. 

One example that we cite is the issue of the double-crested cormorant. Many of our commercial fish ponds are stocked at very 

high densities, from 2,000 to, say, 60,000 catfish per acre, and for 

bait fish it is 50,000 to almost 200,000 bait fish per acre. 

When it comes to the depredation issues with the cormorant, I 

know a 2014 estimate for the Mississippi Delta Region show that 

18 million to 200 million fingerlings per winter are lost to bird depredation. A 1996 USDA survey shows that bird depredation were 

responsible for 37 percent of catfish losses in the aquaculture industry. 

So, certainly, the issue of permitting for depredation for the cormorants is a critical issue that I know our folks in the aquaculture 

industry are looking for Congress to provide immediate input and 

oversight on this important issue. 

Senator BARRASSO. Mr. Miyamoto, we talked about trying to give 

relief for farmers and ranchers in weed and pest districts and others who face duplicative permitting requirements. That has been 

part of the questioning we have had from both sides of the aisle 

here today. 

These permitting requirements are imposed, specifically in weed 

and pest districts, by the National Pollutant Discharge Elimination 

System. It requires one permit under the Federal Insecticide, Fungicide and Rodenticide Act, the FIFRA Act, but another under the 

Clean Water Act to apply a pesticide, even if the pesticide is already approved by the one Act. It just seems that our effort is supVerDate Aug 31 2005 10:18 Sep 19, 2018 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\30329.TXT VERN
78 

ported by aviation groups, agriculture producers, public officials 

like sanitary districts, mosquito control groups. 

And I have a letter that I am going to introduce from the Coalition to talk about that specific thing. 

Without objection, that will be submitted for the record. 

[The referenced information follows:] 

79 


30329.072

Oil Storage on U.S. Farms: Risks and 

Opportunities for Protecting Surface Waters 

U_$_ Environmental Protection Agency 

Office of Emergency Management 

EPA-530-R-15-002 

June 30_ 2015 
80 


30329.073

Acknowledgments 

The U.S. Environmental Protection Agency developed this rep01t in consultation with the U.S. 

Department of Agriculture, Natural Resources Conservation Service. 

WRRDA Farm Study I 
81 


30329.074

Executive Summary 

Motivation for the Study 

The U.S. Environmental Protection Agency (EPA) Office of Emergency Management (OEM) prepared 

this report in response to a provision included in Section 10491 of the Water Resources Reform and 

Development Act (WRRDA) of20 14. The WRRDA provision calls for the Agency to conduct a study to 

determine the aggregate aboveground oil storage capacity threshold for farms subject to the Spill 

Prevention Control and Countermeasure (SPCC) regulation at 40 CFR part 112 based on a significant risk 

of discharge to water.' 

The WRRDA provisions modify the applicability of the SPCC regulation to facilities defined as farms. 

For more information about the effects of the WRRDA on SPCC rule applicability, see the Fact Sheet 

''Farms and the Water Resources Reform and Development Act (WRRDA)."3 

This report summarizes the research EPA conducted to address the mandate for a study. It provides 

information regarding the amount of oil stored by farms, oil storage practices, and discharge history. EPA 

consulted with USDA to gather the most recent and complete information about characteristics of farms. 

particularly as they pertain to oil storage. 

Farms and the SPCC Regulation 

Farms meeting the rule applicability criteria have been subject to the SPCC regulation since its inception 

in 1974. The regulation addresses discharges of oil not otherwise permitted under the Federal Water 

Pollution Control Act (FWPCA) (aka Clean Water Act). These requirements include preparing a written 

Plan which, for most farmers, may be met by completing a simple Plan template and self-certificationensuring that containers are designed and operated in a way to prevent discharges (such as installing 

secondary containment), spill response procedures and resources to quickly address spills that affect or 

threaten navigable waters or adjoining shorelines are identified, and training is conducted for all oilhandling personnel. When it amended the SPCC rule in 2008, EPA estimated that approximately 150,000 

farms may have sufficient aggregate oil storage capacity to be subject to the SPCC requirements (based 

on greater than I ,320 gallons aggregate aboveground oil storage capacity at the time). See Section 1.2. 

Detailed data on oil storage practices on farms are not readily available. This is in part because the SPCC 

regulation does not require subject facilities to identify and report to EPA through a registration program. 

Likewise, USDA does not gather information on oil storage quantities or handling practices. 

While national data on oil storage are not available, the USDA compiles data on fuel expenditures, which 

provide some insight on uses of diesel. gasoline, and other oils on U.S. farms. Additional insight is 

available from selected states that require registration of oil storage containers on farms. Based on fuel 

expenditure data compiled by USDA, EPA estimates that the vast majority of U.S. farms 81 to 

96 percent-- store less than 2,500 gallons of oil on site (either in aboveground or underground containers), 

Section I 049. Applicability of Spill Prevention. Control, and Countermeasure Rule, Public Law 113-121, June I 0, 2014. 

Paragraph (d) states: "(d) STUDY.-- (1) IN GENERAL-Not later than 1 year after the date of enactment of this Act, the 

Administrator, in consultation with the Secretary of Agriculture, shall conduct a study to detennine the appropriate 

exemption under paragraphs (2) and (3) of subsection (b), which shall be not more than 6,000 gallons and not Less than 

2,500 gallons, based on a significam risk of discharge to water." 

See relevant text from the WRRDA in Append1x A. 

Appendix B provides a copy of the fact sheet, also available at http://www2.cpa.gov/sites/production/files/20l5~ 

06/documcnts/tina1_ wrrda __ tact_sheet_ 4-24-15 .pdf 

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and only a very small fraction of farms- less than about I percent store more than 20,000 gallons of oil 

(Section 2.1). This is supported by review of tank registration data and by anecdotal information compiled 

by EPA (Section 2.2). 

Available information suggests that many farmers are not aware of their obligations under the SPCC 

regulation and do not provide adequate secondary containment for their oil containers (Section 2.2). 

Given this lack of awareness, many farmers may also not be aware of the federal criteria and reporting 

requirements for oil spills. State and local regulations (Section 2.4) are not necessarily able to fulfill the 

environmental protection objectives because these regulations often do not cover aboveground oil 

containers at farms. Some states specifically refer to the federal SPCC rule for pollution prevention 

requirements that tank owners must comply with. In fact, since 1974, the SPCC regulation has served as 

the national standard for spill prevention measures at facilities with a reasonable expectation of an oil 

discharge causing harm to navigable waters or adjoining shorelines. 

EPA identified examples of spills from farm bulk storage containers (Section 3.1), and ample evidence 

that discharges of oil- even in the relatively small quantities stored on farms-· cause significant harm to 

the environment (Section 3.2). 

Threshold Determination 

The WRRDA amendments to the SPCC rule call for EPA to study and address the appropriateness (based 

on a significant risk of discharge to water) of the interim conditional threshold, which provides that farms 

with aggregate aboveground oil storage capacities greater than 2,500 gallons and less than 6,000 gallons 

are not subject to SPCC regulation based on aggregate aboveground oil storage capacity so long as they 

have a clean spill history. 

Based on evidence that small discharges cause significant harm and lack of evidence that farms are 

inherently safer than other types of facilities, this study shows that its existing threshold aggregate 

aboveground oil storage capacity of 1,320 gallons is appropriate for all facilities in order to provide an 

adequate level of environmental protection of the nation's waters. This threshold establishes a baseline for 

the implementation of spill planning and use of rudimentary prevention measures, avoids the regulation of 

small capacity end users, while addressing the FWPCA mandate that there shall be no oil discharges to 

waters of the United States. This is also consistent with the Agency's previous findings as discussed in 

the record supporting amendments to the SPCC regulation that provided relief to farmers and other small 

facilities (see Section 1.4). EPA realizes, however, that the WRRDA amendments create a new minimum 

regulatory threshold of 2,500 gallons aggregate aboveground oil storage capacity specifically for farms. 

Based on this study, which includes the agency's record and the lack of data to support any higher 

threshold, it is appropriate to set the threshold at the minimum of 2,500 gallons aggregate aboveground 

oil storage capacity provided by the WRRDA amendments for farms, instead of the interim exemption of 

up to 6,000 gallons. EPA maintains that requiring simple measures such as adequate containment, 

periodic inspection of containers, and regular review of oil handling practices, is an appropriate way to 

address the risk of spills to waters for farms storing even small quantities of oil. such as the 2,500-gallon 

minimum aggregate aboveground oil storage capacity allowed under the WRRDA amendments. 

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Table of Contents 

Introduction .•.....................................•.....•.•...........................................................•....•....••...•.••..•..... I 

1.1 SPCC Rule Authority and Regulatory History .......................................................................... l 

1.2 SPCC Aggregate Aboveground Storage Capacity Requirements Applicable to Farm Facilities 

4 

1.3 Significant Risk of Discharge to Water ..................................................................................... 7 

1.4 Oil Storage Thresholds .............................................................................................................. 8 

2 Farm Facilities ................................................................................................................................ 1 t 

2.1 Farm Size ................................................................................................................................. I! 

2.1.1 Gasoline, Fuel, and Oil Expenditures at Farms ........................................................... 13 

2.1.2 Estimates of the Number ofSPCC-Regulated Farms .................................................. 15 

2.2 Oil Storage Practices on Farms ............................................................................................... 16 

2.2.1 Aboveground and Underground Oil Storage on Fanns ............................................... 17 

2.2.2 Types of Fuel Stored on Farms .................................................................................... 17 

2.2.3 Oil Storage Container Size on Farms .......................................................................... 18 

2.2.4 Oil Storage Container Distribution on Fanns .............................................................. 20 

2.2.5 Frequency of Fuel Delivery to Farms .......................................................................... 22 

2.2.6 Spill Containment Structures ....................................................................................... 22 

2.3 Uniqueness of Farms and Similarity in Storage Practices to Other Facilities ......................... 24 

2.4 State Regulations of Oil Storage at Farms .............................................................................. 25 

3 Oil Discharges ................................................................................................................................. 28 

3. I Reported Discharges ................................................................................................................ 28 

3.2 Environmental Impacts of Oil Discharges .............................................................................. 33 

4 Conclusions ..................................................................................................................................... 36 

Appendix A: Relevant Text from the Water Resources Reform aud Development Act (WRRDA). 39 

Appendix B: EPA Fact Sheet- Farms and the Water Resources Reform and Development Act 

(WRRDA) ........................................................................................................................................ 4l 

Appendix C: Summary of State Regulations and Programs for Oil Storage on Farms ..................... 42 

References .................................................................................................................................................. 51 

" '~ ~. " ,~.,.~ 

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Ust of Exhibits 

Exhibit I: Farm SPCC Plan preparation and certification requirements ...................................................... 6 

Exhibit 2: Flowchart to determine current SPCC applicability to farms and type of Plan based on 

aggregate aboveground oil storage capacity and reportable discharge history after WRRDA 

amendments .......................................................................................................................................... 6 

Exhibit 3: Percent of farms by farm size (acres of harvested cropland) ..................................................... 12 

Exhibit 4: Average farm size by type (in order ofNAICS code) ................................................................ 12 

Exhibit 5: Distribution of farms by farm size and type ............................................................................... 13 

Exhibit 6: Average expenditure on gasoline, fuel, and oil by farm size ..................................................... 14 

Exhibit 7: Average per acre gasoline, fuel, and oil expenditure by farm type (in order ofNAJCS code) .. 14 

Exhibit 8: Average gasoline, fuel, and oil expenditure by farm type .......................................................... 15 

Exhibit 9: Number and aggregate storage capacity offarms by economic class in 2013 ........................... \6 

Exhibit 10: Distribution of farms by aggregate storage capacity range in 2013 ......................................... 16 

Exhibit I I: Distribution of farm aggregate storage capacity in selected counties in Florida ..................... 19 

Exhibit 12: Oil storage capacity for cotton ginning operations .................................................................. 20 

Exhibit 13: Oil storage capacity for dairy and rice farms ........................................................................... 20 

Exhibit \4: Excerpted results of2005 USDA Survey: Farmer questionnaire responses to Questions 9a and 

9b ........................................................................................................................................................ 21 

Exhibit 15: Approximate cost of on-farm secondary containment facility EQJP practice ......................... 24 

Exhibit 16: Summary of state AST programs (States with specific farm exemptions underlined) ............ 26 

Exhibit 17: Farm AST Capacity Thresholds ............................................................................................... 26 

Exhibit 18: Booms deployed to contain and collect diesel spilled by a farm in Oregon in February 2010 ... . 

Exhibit \9: Discharge of off-road (red dyed) diesel from a farm in Georgia in November 2012 ................. . 

Exhibit 20: Example natural resource damages from fuel spills between 2,000 and 30,000 gallons ......... 33 

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List of Abbreviations 

AST 

CAFO 

CWA 

EPA 

EQIP 

IFC 

FDA 

FLDEP 

FR 

NAICS 

NFPA 

NRC 

NRCS 

NRDA 

OSLTF 

SPCC 

STI 

USDA 

UST 

WRRDA 

Aboveground storage tank 

Concentrated Animal Feeding Operation 

Federal Water Pollution Control ACT (FWPCA) (aka Clean Water Act) 

United States Environmental Protection Agency 

Environmental Quality Incentives Program 

International Fire Code 

Food and Drug Administration 

Florida Department of Environmental Protection 

Federal Register 

North American Industry Classification System 

National Fire Protection Association 

National Response Center 

Natural Resources Conservation Service 

Natural resource damage assessment 

Oil Spill Liability Trust Fund 

Spill Prevention Control and Countenneasure (40 CFR part 112) 

Steel Tank Institute 

United States Department of Agriculture 

Underground storage tank 

Water Resources Reform and Development Act of20I4 

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1 Introduction 

The Spill Prevention, Control, and Countermeasure (SPCC) regulation at 40 CFR part I I 2, promulgated 

under the authority of the Federal Water Pollution Control Act (FWPCA) (also known as the Clean Water 

Act), aims to prevent oil discharges (spills) into navigable waters or adjoining shorelines. The SPCC rule 

applies to all facilities, including fanns, that store, transfer, use, handle or consume oil or oil products in 

quantities above a specified threshold and could reasonably be expected to discharge oil to navigable 

waters or adjoining shorelines. A key element of the SPCC program is the development and 

implementation of oil spill prevention plans, referred to as SPCC Plans. 

On June 10,2014, the President signed the Water Resources Reform and Development Act (WRRDA) of 

2014. The Act amended certain applicability provisions of the SPCC rule for farm facilities and modified 

the criteria under which a farmer may self-certify a SPCC Plan. Thus, farms that have an aggregate 

aboveground oil storage capacity of 2,500 gallons or less are no longer subject to SPCC based on 

aggregate aboveground oil storage capacity, and farmers are allowed to self-certifY their Plans if they 

have an aggregate aboveground oil storage capacity greater than 6,000 gallons and less than 20,000 

gallons; no individual container with a capacity greater than 10,000 gallons; and no repottable discharge 

history. The Act also amends the SPCC rule to establish a temporary exemption for farms that have an 

aggregate aboveground oil storage capacity of 6,000 gallons or less and no reportable oil discharges. This 

conditional applicability threshold is meant to be an interim measure until EPA completes a study to 

determine the appropriate aggregate aboveground oil storage capacity threshold level (between 2,500 and 

6,000 gallons), based on a significant risk of discharge to water. Appendix A provides relevant text of the 

WRRDA pertaining to SPCC. 

WRRDA provides for EPA to complete the study within one year. Within 18 months of completing this 

study, EPA is to promulgate a regnlation to amend the SPCC requirements for farms to set an appropriate 

aggregate aboveground oil storage capacity threshold for farms; that threshold must fall within the range 

of 2,500 to 6,000 gallons. 

The purpose of this study is to inform the determination of an appropriate facility threshold lor farms, 

within a range of2,500 to 6,000 gallons aggregate aboveground oil storage capacity. based on a 

significant risk of discharge to water. This report summarizes information EPA reviewed, in consultation 

with USDA, to respond to the WRRDA charge. The study is organized as follows: 

The remainder ofthis introduction provides additional background on the SPCC regulation and 

on the scope of the study, specifically on applicable storage thresholds and significant risk of 

discharge to water. 

Section 2 describes oil storage at farms, including discussion of state regulations applicable to oil 

containers at farms. 

Section 3 swnmarizes findings from EPA's review of oil discharge incidents from farms and 

discussion of the environmental impacts of discharges of even relatively small quantities of oil. 

Section 4 summarizes recommendations and highlight important considerations for evaluating 

threshold options. 

1.1 SPCC Rule Authority and Regulatory History 

The FWPCA of 1972, as amended, commonly known as the Clean Water Act (CWA), is the principal 

federal statute for protecting navigable waters, adjoining shorelines, and the waters of the contiguous zone 

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from pollution.< The Clean Water Rule: Definition of"Waters of the United States", 80 FR 37053, 

clarifies the waters regulated by the SPCC program ("navigable waters"). Section 311 of the CWA 

addresses the control of oil and hazardous substance discharges, and provides the authority for 

promulgation of a regulation to prevent, prepare for, and respond to such discharges. Specifically, CW A 

§3110)(l)(C) provides for regulations establishing procedures, methods, equipment, and other 

requirements to prevent discharges of oil from vessels and facilities and to contain such discharges. 

Section 311 does not provide a facility specific exemption for farms.' 

The SPCC rule implements EPA's authority under CWA §311. as delegated through various Executive 

Orders. Pursuant to Executive Order I I 548, EPA was delegated the authority to regulate nontransportation-related onshore and offshore facilities that could reasonably be expected to discharge oil 

into navigable waters or adjoining shorelines (35 FR 11677, July 22, 1970). Executive Order 11548 was 

superseded by Executive Orders 11735 and 12777, respectively (38 FR 21243, August 7, 1973; 56 FR 

54757, October 22, 1991 ). These Executive Orders delegated authority to the U.S. Department of 

Transportation (DOT) over transportation-related onshore facilities, deepwater ports, and vessels, and to 

the U.S. Department of the Interior (DOl) over specific offshore facilities, including associated pipelines. 

The SPCC rule was initially promulgated in 1973 and became effective on January I 0, !974 (38 FR 

34!64 ). The regulation established oil discharge prevention procedures, methods, and equipment 

requirements for non-transportation-related facilities with an aboveground (non-buried) oil storage 

capacity greater than 1,320 U.S. gallons (or greater than 660 U.S. gallons aboveground in a single 

container). Regulated facilities were also limited to those that, because of their location, could reasonably 

be expected to discharge oil into the navigable waters or adjoining shorelines. The rule included sections 

on general applicability, relevant definitions, and requirements for preparation of SPCC Plans; provisions 

for SPCC Plan amendments; civil penalty provisions; and requirements for the substance of the SPCC 

Plans. Farms meeting the SPCC applicability criteria have been subject to its requirements since !974. 

EPA made subsequent revisions and further modifications to the SPCC requirements on several 

occasions. Some of these modifications were specifically aimed at streamlining the rule requirements for 

farms and other small facilities. 

On July 17,2002, EPA published a final rule amending the Oil Pollution Prevention regulation (67 FR 

47042). The final rule became effective on August 16,2002, and incorporated revisions EPA proposed in 

1991, 1993, and 1997. The 2002 amendments to the performance-based regulation provided flexibility to 

the regulated community in meeting many of the oil discharge prevention requirements and the overall 

goal of preventing oil spills that may impact navigable waters or adjoining shorelines. In addition, the 

final rule included new subparts outlining the requirements for various classes of oil, revised the 

applicability of the regulation. amended the requirements for completing SPCC Plans, and made other 

modifications. The tina! rule also contained a number of provisions designed to decrease regulatory 

burden on facility owners and operators subject to the rule. For example, the 2002 rule added 

"environmental equivalence" and "impracticability" provisions to allow facilities to deviate from 

specified substantive requirements and to implement alternative measures. The amendments also 

exempted many completely buried underground storage tanks (USTs) and containers that store less than 

55 U.S. gallons, and increased the oil capacity threshold for the applicability of the rule, among other 

changes. 

See 33 USC 132l(b)(l) and 33 USC 1362. 

Section 311 applies to onshore facilities, defined as "(lO) 11 onshore facility'~ means any facility (including, but not limited to. 

motor vehicles and rolling stock) of any kmd located m, on, or under, any land within the United States other than 

submerged land" 

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In December 2006, EPA amended the SPCC rule to streamline the requirements for a subset of facilities, 

including fanns, in an effort to improve compliance and enhance environmental protection (71 FR 77266, 

December 26, 2006). The 2006 amendments provided an option to allow the owner or operator of a 

facility that meets qualifying criteria (i.e., a "qualified facility") to self-certify the facility's SPCC Plan in 

lieu of review and certification by a licensed Professional Engineer (PE). To qualify for self-certification, 

the facility must have an aggregate aboveground oil storage capacity of 10,000 U.S. gallons or less and 

not have reportable discharges. (Note that WRRDA revised this criterion for farms by allowing selfcertification for farms with an aggregate aboveground oil storage capacity greater than 6,000 gallons and 

less than 20,000 gallons; no individual container with a capacity greater than 10,000 gallons; and no 

reportable discharge history.) 

In December 2008, EPA again amended the rule to provide increased clarity, to tailor requirements to 

particular industry sectors (including farms), and to streamline certain requirements (73 FR 74236, 

December 5, 2008). Several of the revisions were specifically tailored for farmers. For example, EPA 

exempted residential heating oil containers such as those found at a farmer's primary residence, further 

streamlined requirements for a subset of qualified facilities (building on the 2006 amendments above) that 

have no container greater than 5,000 gallons, clarified the definition of facility as it applies to operations 

covering different parcels of land, and provided additional flexibility for meeting facility security 

requirements. As EPA noted at the time in the rule preamble, the revisions provided significant relief to 

farmers (72 FR 58378-58431): 

[. . .]In providing the option for an owner or operator of a facility that stores IO,OOO gallons of oil or less 

and meets other qualifying criteria to self-certify his SPCC Plan in lieu of review and certification by a 

Professional Engineer. the December 2006 amendments offered relief to an estimated 95 percent of ali 

SPCC-regulated farms. 

[. .. ]As discussed in Section G of this preamble. EPA is proposing an additional option for a subset of 

qual{fiedjacilities ("Tier J") that have a maximum individual oil storage container capacity of5.000 

gallons, by allowing these facilities to complete a simplified self-certified SPCC Plan template in lieu of a 

.fit!/ SPCC Plan. This option would be available to any facility that meets the Tier I qualification criteria, 

including a farm. EPA expects that at /east128.000farms (or more than 84% ~(the farms regulated by the 

SPCC rule) may be eligible for this proposed option 

EPA is also proposing to clarijj• the definition of ''facility" in the SPCC rule. as discussed in Section D of 

this preamble. The proposed definition would clarify the existing flexibility for a facility owner or operator. 

particularly for a farmer, to define oil storage areas located on either contiguous or noncontiguous parcels 

of land (e.g .. satellite storage areas) as separate facilities for the purpose of determining SPCC 

applicability and preparing/implementing an SPCC Pian. 

Under this proposal ('iee Section C), EPA would exempt heating oil containers at single-family residences. 

EPA understands thatfarms ~(len include, within the geographical confines of the facility. the residence of 

the owner or operator. and so the Agency believes this proposed amendment also 1-ri!/ be ofbenefit to 

farms. 

This proposal (.'ee Section I) also addresses streamlining of the security requirements under§ 1 I J. 7(g) to 

allmt' more flexibility in determining ho·w best to secure and control access to the oil handling, processing 

and storage areas; secure masterjlow and drain valves; prevent unauthori=ed access to starter controls on 

oil pumps; secure out-of-service and loading/unloading connections of oil pipelines; and address the 

appropriateness of securily lighting to both prevent acts of vandalism and assist in the discove1y of oil 

discharges. This amendment ·will particularly benefit the owner or operator of a farm, because il allows for 

consideration of site-specijlc factors in determining how best to design security for the facility to prevent 

vandalism and detect spills from oil-handling areas. An owner or operator of a farm may also benefit from 

the currently proposed amendments related to loading/unloading racks (Section F of this preamble) and 

integrity testing (Section J). 

WRRDA Farm Study; 
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30329.082

lhe Agem.y believes that both the amendments.finali=ed in 2006 and those being proposed in this notice 

provide signtficant flexibility to the agricultural sector. In this action. the Agency also is proposing further 

amendments to the SPCC rule to address concerns specific to the agricultural community regarding 

pesticide application equipment and related mix containers used at farms. 

[. . .]EPA proposes certain tailored requirements ben~fitingfarms. Specifically, EPA proposes to exempt 

pesticide application equipment and related mix containers used at farms, that may currently he subject to 

the SPCC rule when crop oil or adjuvant oil are added to formulations. In addition, EPA seeks to clarify 

that the amendment related to mobile refue/ers, as promulgated in the December 2006 rule amendments 

(71 FR 77266, December 26. 2006), can be used by farmers to address oil spill prevention requirements/or 

.fite! nurse tanks. 

EPA promulgated additional revisions to the December 2008 amendments in November 2009 (74 FR 

58784, November 13, 2009). 

EPA finalized one additional amendment to the SPCC rule in April 20 II to exempt milk and milk product 

containers, associated piping and appurtenances from the SPCC regulation (76 FR 21652, April 18, 

2011). 

Throughout these various actions, EPA extended the compliance dates for amending and implementing 

existing SPCC Plans. EPA also extended the compliance dates for developing and implementing new 

Plans developed under 40 CFR part 112. Thus, on eight occasions following the 2002 final rule, EPA 

extended the compliance dates in§ 112.3 for existing facilities to update (or for new facilities to prepare) 

and implement an SPCC Plan that complies with the revised requirements. EPA specifically gave farmers 

more time to prepare or amend and implement the farm's SPCC Plan. All compliance dates have now 

passed. If the owner or operator of a facility did not comply with the SPCC rule and does not have an 

SPCC Plan, the owner or operator must develop a Plan immediately in accordance with the amendments 

to the rule from 2002 forward. 

EPA has developed several tools to facilitate development ofSPCC Plans by qualified facilities, including 

farms. The Agency also developed farm-specific outreach material such as Web pages, fact sheets, 

guidance, templates and other compliance assistance tools, training aids, and other material to help 

farmers develop SPCC Plans with minimal cost and effort. 

1.2 SPCC Aggregate Aboveground Oil Storage Capacity Requirements Applicable to 

Farm Facilities 

SPCC currently applies to a farm6 that: 

Stores, transfers, uses, or consumes oil or oil products, such as diesel fuel, gasoline, lube oil, 

hydraulic oil, adjuvant oil, crop oil, vegetable oil, or animal fat; and 

Has containers with a total aggregate aboveground oil storage capacity greater than 2,500 U.S. 

gallons 7 ; and 

For the purpose of 40 CFR 1 I 2, "f3rm ., means a facility on a tract ofland devoted to the production of crops or raising of 

animals, including fish. which produced and sold, or normally would have produced and sold, $1 ,000 or more of agricultural 

products during a year. 

The 2,500-gallon aggregate aboveground oil storage capacity threshold reflects farm~specific changes made under the 

WRRDA amendments. relative to a threshold of 1,320 gallons aggregate aboveground oil storage capacity for other types of 

facilities. Note that WRRDA amendments provide an interim conditional exemption tOr farms with an aggregate 

aboveground oil storage capacity less than 6,000 gallons and no reportable oil discharge history. 

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Could reasonably be expected to discharge oil to navigable waters or adjoining shorelines, such 

as interstate waters, intrastate lakes, rivers, and streams. 

When calculating the aggregate aboveground oil storage capacity, farmers do not need to count containers 

on separate parcels that have a capacity that is 1,000 U.S. gallons or less, or containers holding animal 

feed ingredients approved for use in livestock feed by the Food and Drug Administration (FDA). 8 

Further, farmers may treat adjacent or non-adjacent parcels, either leased or owned, as separate facilities 

for SPCC purposes. Aggregate aboveground oil storage capacity of containers on separate facilities (as 

identified based on how they are operated) do not need to be added together in determining whether the 

2,500-gallon aggregate aboveground oil storage capacity applicability threshold is met. 

Upon determining that their farm is subject to SPCC, farmers must prepare and implement an SPCC Plan. 

The Plan describes procedures for preventing, containing, and removing oil discharges, as well as critical 

information to ensure prompt response and reporting in the event of a discharge. Farmers must amend and 

update their SPCC Plan when implementing changes to their farm that affect the risk of an oil discharge. 

They must also review their Plan every five years to make sure it reflects the most current information. 

Farms required to have an SPCC Plan should already be implementing their Plan and must maintain or 

amend their existing Plan if needed as soon as possible. For new farms that are not yet operational, the 

farm owner or operator must prepare and implement a Plan, if one is required, before the start of 

operations. 

A farm can fall into one of three categories depending on the requirement for a Plan and level of 

certification, as summarized in Exhibit 1 based on the rule at 40 CFR part 112 and the WRRDA 

amendments, and as illustrated in the flow chart of Exhibit 2. 

Note that the streamlining and self-certification option available to almost all (99 percent) farms with a 

clean spill history have dramatically reduced the cost and effort of preparing and maintaining an SPCC 

Plan for the very small fraction of farms required to have a Plan. 

The SPCC rule also prov1des exemptions for containers storing heating oil used solely at a single-family residence (e.g., the 

personal residence as the farm owner or operator); pesticide application equipment or related mix containers (with adjuvant 

oil); any milk and milk product container and associated piping and appurtenance; and completely buried oil tanks and 

associated piping and equipment that are subject to all of the technical requirements under 40 CFR part 280 or 281. 

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Exhibit 1: Farm SPCC Plan preparation and certification requirements 

Category 

Farms that are not required 

to have an SPCC Plan based 

on aggregate aboveground oil 

storage capacity. 

Farms that can have a selfcertified SPCC Plan based on 

aggregate aboveground oil 

storage capacity 

Aggregate Aboveground Oil Storage Capacity and Reportable Discharge Criteria 

• Aggregate aboveground oil storage capacity less 2,500 gallons; OR 

• Aggregate aboveground oil storage capacity greater than 2,500 gallons and less than 

6,000 gallons/ and no reportable discharge history. 

• Aggregate aboveground oil storage capacity greater than 6,000 gallons and less than 

20,000 gallons;' 

• No individual container with a capacity greater than 10,000 gallons; and 

• No reportable discharge history. 2 

Some farmers in this category need to have their Plan certified by a Professional Engineer 

(PE) if they decide to use certain alternate measures allowed by the SPCC rule 

Farms that must have a PEcertified SPCC Plan based on 

aggregate aboveground oil 

storage capacity 

• An individual container with an aboveground oil storage capacity greater than 10,000 

gallons; OR 

• Aggregate aboveground oil storage capacity greater than or equal to 20,000 gallons; OR 

• A reportable discharge hlstorl 

Notes. 

1

6,000+ga!!on aggregate aboveground oil storage capacity threshold is subject to revisions; see Appendix B. 2 WRDDA defines "reportable oil discharge" as: a single oil discharge as described in section 112.1{b) of the SPCC rule that exceeds 1,000 

gallons, or 2 oil discharges that each exceed 42 gallons, within any 12-month period-{i) in the 3 years prior to the certification date of the SPCC 

Plan (as described in section 112.3 of the SPCC rule); or {il) since becoming subject to the SPCC rule (40 CFR part 112) if the facility has been ln 

operation for less than 3 years. 

Exhibit 2: Flowchart to determine current SPCC applicability to fanns and type of Plan based on aggregate 

aboveground oil storage capacity and reportable discharge history after WRRDA amendments. .... . ... ...... ... . . .. I 

Do you have an individual tank with an 1 

aboveground storage capacity greater than f-vEs.------~' Your farm is required to have 

10,000 u.s. gallons? 1 • aPE-certified SPCC Plan 

Is your aggregate aboveground storage 

capacity greater than or equal to 20,000 U.S. 1--·YEI;--------------l 

gallons? 

Do you have a reportable discharge history? 1--·YEI;------------1 

. I 

NO 

'!' ... 

Is your aggregate aboveground storage 

capacity greater than 6,000 U.S. gallons? 

Your farm must have an 

SPCC Plan; you may self· 

certify your SPCC Plan, 
92 


30329.085

1.3 Significant Risk of Discharge to Water 

In the WRRDA, Congress did not define the tenn "significant risk." However, the CW A and its 

implementing regulations provide context for interpreting the meaning and scope for the term. One 

important consideration is the amount of discharged oil that is defined as "harmful" under the Discharge 

of Oil regulation at 40 CFR part 110, also referred to as the "sheen rule." The regulation defines harmful 

quantities as those oil discharges that violate applicable water quality standards; cause a film or "sheen" 

upon, or discoloration of the surface of the water or adjoining shorelines; or cause a sludge or emulsion to 

be deposited beneath the surface of the water or upon adjoining shorelines. 

The sheen rule has a long history as a reasonable, effective and scientifically based method to determine 

what quantities of oil may be harmful. For its 1987 amendment to the Discharge of Oil regulation. EPA 

described some of the harmful eiiects referenced in the scientific literature, in response to a suggestion by 

a commenter that volumetric limits, rather than the "sheen" test would provide sufficient water quality 

protection. For example: 

EPA has careful~v reviewed the recent scient{fic literature on environmental effects qf oil pollution, 

including documents submitted by commenters and other documents referenced in comment/etters or 

compiled in the public docket during the comment period EPA believes !hat the literature clear(v 

demonstrates that discharges of small quantities of oil cause environmental harm. 

[. .. ]Many !}pes of adverse ~ffectsfrom oil have been extensively documented proving harmfitl effects/rom 

oil spills and chronic pollution in inland u·aters, in coastal environments, and in waters beyond 12 miles 

from shore. Evidence from revie1vs of laborafo1y studies further demonstrates that vet}' small amounts of 

oil. e.g .. less !han 1 mg!L (1 ppm), can have lethal and suble!ha/ ~{feels on a wide variely of organisms. The 

National Academy of Sciences (NAS), in its 1985 comprehensive review, noted that "low concentrations 

(less than 1 mg/L) of petroleum hydrocarbons can apparently inteJfere with the normal behavior of marine 

organisms, especially the more fragile components such as the larval andjurenilejorms oft he marine food 

chain. 

Moreover, some commenters appear to have defined potential harm as permanent biological harm on a 

broad scale. There simply is no persuasive indication in the statute that Congress intended this narrow 

interprelation of the harmful quantity standard 1nfact, the Congressional policy expressed in CW4 section 

311 (b)(/) "that !here should be no discharges of oil" (emphasis added) suggests just the opposite. Equally 

important, nothing in the legislative hist01y of the C1VA or in judicial interpretations of the Act suggests 

that a demonstration of permanent harm on a broad scale is required. Congress stated in the 1978 C1Y:4 

Amendments that a prohibited discharge need only be a quanlity that may be harmful. In cases such as U.S 

v. Atlanlic Ricl1field Company. 429 F Supp. 830. 837 (E.D. Fa., 1977), the courts have suggested that 

Congress believed that even transilmy pollution of waters was deleterious to the environment. A1any (?f the 

studies submitted by commenters support the fact that small oil spills do cause harm in certain waters (e.g,, 

spau:ning grounds, estuaries)_ A1any opponents of the sheen test concede that coastal and inland areas and 

sensitive habitats may be vulnerable to damage from low levels of oil pollution, and many admit that there 

may be at least tempormy harm. Documents compiled in the public docket clear!J.t show that small amounts 

of oil are harn?fld in a variety of locations and circumstances, including -~pawning grounds and sensitive 

habitats beyond 12 miles from shore. (Apri/2, /987:52 FR 10714 -17) 

EPA also discussed the deleterious impacts small quantities of oil can have on the environment in the 

SPCC record. For example: 

Additionally, the co-location of oil productionfaci/ities with olher land users, inc/udingfarmers and 

ranchers. raises additional concern over potential contamination ofwater resources that are essential to 

agricultural production. One comment expressed concern that produced water could contaminate surface 

watenvays, groundwater and drinking water: kill fish, birds, and wildlife; and cause severe health effects 

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in humans and impact lt'ildlife habitats. The comment also noted that it takes only a small amount of oil to 

affect a large area of water. EPA agrees with this comment. Under ~0 CFR part I 10, a discharge()( oil in 

such quantilies as ··may be han1!ful'' is defined as one that may violate applicable water quality 

standards; or cause a film or sheen upon or discoloration of the sw.face of the water or acfjoining 

shorelines; or cause a sludge or emulsion to be deposited beneath the swface of the water or upon 

adjoining shorelines. In the Federal Register notice published when EPA provided revisions to ~0 CFR 

part 110, EPA stated that ''[e )vidence from reviews of laboratory studies further demonstrates that vet).! 

sma/1 amounts of oil, e.g, less than I mg/L (1 ppm) can have lethal and sublethal effects on a wide variety 

of organisms." (52 FR 10716, April 2, 1987). T'lJerefore, even if a produced water container has a very 

small amount of oil, the container still holds the potentia/to cause harm. (November 13, 2009: 74 FR 

58803) 

For this study, EPA considers discharges in any amount meeting the harm criteria as potentially 

"significant" based on the legislative and regulatory record that established that harmful discharges are 

not necessarily those associated with some specific discharge quantity. 9 

1.4 Oil Storage Thresholds 

In developing the SPCC regulation, EPA considered the significant harm that can be caused by small 

discharges to set a protective regulatory threshold for requiring SPCC Plans. The SPCC regulatory 

framework is consistent with the policy expressed in section 311 of the FWPCA (see preamble discussion 

below), which states that there shall be "no discharges of oil. .. into ... waters of the United States [or] 

adjoining shorelines.,.", as well as authority provided in section 311 for the President (through EPA for 

relevant purposes here) to require the development of oil spill prevention plans. As established in the 

rulemaking record and discussed above, small oil spills (resulting in concentrations in the range of 1 ppm) 

can cause significant harm to aquatic environments. EPA has set a reasonable applicability threshold by 

requiring spill prevention plans tor facilities that have more than I ,320 gallons in aggregate aboveground 

oil storage capacity, a volume that is signiticantly greater than the quantities of oil that may be harmful in 

the event of discharge. 

In response to a comment about the regulatory thresholds and small facilities EPA stated (67 FR 47055; 

July 17, 2002): 

Large or small facility regulation. in general. We hare decided not to regulate facilities d!fferently based 

merely on storage capacity, prorided that the capacity is above the regulatoty threshold of over 1,320 

gallons. This decision is based on environmental reasons. Small discharges of oil that reach the 

environment can cause sign!ficant harm. Sensitive enviromnents, such as areas with diverse and/or 

protected flora and fauna, are rulnerable to small spills. EPA noted in a recent denial of a petition for 

rulemaking: "Small spills of petroleum and vegetable oils and animal fats can cause signijlcant 

environmental damage. Real-world examples of oil spills demonstrate that spills of petroleum oils and 

vegetable oils and anima/fats do occur and produce deleterious environmental effects. in some cases, 

small spills ofvegetahle oils can produce more environmental harm than numerous large spills of 

Alternatives to the concept of"harmful quantity" had initially been considered by Congress. The original House bill 

required the reporting of discharges of oil in "substantial quantities", while the original Senate bill would have prohibited oil 

discharges in any quantity, except as permitted by regulations. These concepts were found to be impractical, as they would 

have required further definitions (e.g., what is "substantial"), a prion· determination of allowable quantities, or the reporting 

of even de minimis discharges. Congress instead gave the President (and in turn EPA) the authority to detennine "harmful 

quantity." 

In 40 CFR part ll 0, EPA established discharge of oil in such quantities as may be harmful pursuant to section 3! I (b)( 4) of 

the Act as including "discharges of oil that: (a) Violate applicable water quality standards; or (b) Cause a film or sheen upon 

or discoloration of the surface of the water or adjoining shorelines or c-ause a sludge or emulsion to be deposited beneath the 

surface of the water or upon adjoming shorelines." 

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petroleum [*47056} oils." 62 FR 54508, 54530, October 20, 1997. Describing the outcome of one small 

spill of 400 gallons of rapeseed oil into Vancouver Harbor, we noted that " * * * 88 oiled birds of 14 

species were recovered after the spill, and half of them were dead. Oiled bird.' usual/yare not recovered 

for 3 days qfter a spill, when they become weakened enough to be captured. Of the survivors, half died 

during treatment. The number of casualties from the rapeseed oil spills was probably higher than the 

number of birds recovered. because heavily oiled birds sink and dying or dead birds are captured quickly 

by raptors and scavengers." 

EPA considered the risk posed by facilities with different aggregate quantities of oil on site when 

amending the SPCC regulation to provide additional flexibility to small facilities and reduce the burden of 

preparing SPCC Plans. In particular, the Agency considered the risk posed by facilities with less than 

10,000 gallons in aggregate aboveground oil storage capacity when it amended the SPCC regulation to 

allow self-certification of Plans by qualified facilities. 

Further, in proposing to extend compliance dates for farms, EPA noted that (70 FR 73542; December 12, 

2005): 

"EPA proposes the 10, 000-gal/on thresholdforfarms ffor an extension of compliance dates} to be 

consistent with the threshold quantity used in the NCP to classifY oil discharges to inland waters as 

"major" (40 CFR 300.5). Tints, a facility storing less than 10,000 gallons of oil could not be involved in a 

mqjor discharge based on the NCP quantitative criterion alone, although use of this numerical criteria 

[sic J is not meant to imply that smaller discharges are not harmful. This same I 0, 000-gal/on threshold 

discharge volume is also one factor used in identifj;ingfaci/ities that must prepare and submit a Facility 

Response Plan (FRP) under§ 112.20(/)(1). In addition. 10,000 gallons is a common storage capacity and 

such a threshold would extend the compliance dates for a significant portion of the farm sector. Data 

provided by the agricultural industry and the U.S. Department of Agriculture indicate that the average 

aggregated aboveground oil storage capacity at farms surveyed in 2005 was 5,550 gallons; approximately 

83 percent of surveyed farms have aggregated oil storage below 10,000 gallons. Farms with less than 

1,000 acres had an average oil storage capacity of less than 2,500 gallons;farms with over 1,000 acres 

had an average oil storage capacity of almost8,000 gallons. (See "Fuel/Oil Storage and Delivety.for 

Farmers and Cooperatives," USDA, March 2005, in the docket for today 's proposal.)" 

And while EPA has recognized that differentiated requirements may be warranted and is consistent with 

treatment of different size containers by standard setting organization, EPA has historically maintained 

that small containers can still pose a risk of a discharge. 

"EPA believes that a differentiated option for users of smaller amounts of oil has merit as other official 

bodies, such as standards setting organi=ations have provided differentiations in Their standards for 

smaller users of oil. For example, the National Fire Protection .4ssociation (,VFPA) provides differentiated 

!ElY.it:ements f!ased on type o(facility and si:e oltanks. Spec!fically, NFPA 30 (Flammable and 

Combustible Liquids Code. 2000 Edition) applies to tanks that exceed 3,000 liters (793 gallons) and does 

not apply to facilities storingjlammable and combustible liquids as covered by NFPA 395, Standard for the 

Storage of Flammable and Combustible Liquids at Farms and Isolated Sites." (71 FR 77273; December 

26, 2006) 

The EPA SPCC threshold of I ,320 gallons aggregate aboveground oil storage capacity was designed to 

require even small facilities to develop spill prevention plans if they could cause a harmful discharge. 

It is also worth noting that EPA has not used spill history as a basis for applicability of the SPCC rule 

requirements; rather spill history is a criterion to detennine a facility's eligibility for self-certification of 

its plan (see 71 FR 77271; December 26, 2006): 10 

Further note that determination of eligibility based on reportable discharge history is made at the time the SPCC Pian is 

certified. Discharges occurring from a qualified facility after the SPCC Plan has been certified do not impact the eligibility 

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Jrhi/e !~PA recogni=es that past discharge history does not necessari~v translate into a predictor of future 

pe1:fOrmance, the ,Agency believes that discharge history is a reasonable indicator of a facility o-wner or 

operator ·s ability to develop an SPCC Plan for his smaller oil storage capacity facility without the 

involvement of aPE 

The reportable discharge history criterion was intended to limit the option of self-certification to owners 

and operators of those facilities that had demonstrated an effective implementation of spill prevention 

measures in the past. 

of an owner or operator of the qualified facility to take advantage of the self-certification option, unless the RA requires an 

amendment to the SPCC Plan in accordance with § ll2.4(d) and specifically requires PE certification (see 71 FR 77272). 

10 
96 


30329.089

2 Farm Facilities 

The agricultural sector covers a broad spectrum of farming operations, including, but not limited to, 

oilseeds, grains, vegetables, and other field crops, fruit orchards, greenhouses and nurseries, poultry 

production and livestock husbandry. In this study, EPA used the most current data from the U.S. Census 

of Agriculture on the characteristics of limn operations and USDA data on farm expenditures in 2013 to 

develop a profile of oil use on U.S. farms." EPA also reviewed other relevant data, such as data from a 

2005 survey that USDA conducted on fuel storage at farms, site visits EPA conducted at farms between 

May 2005 and January 2007 to understand oil use and storage practices, and SPCC inspections EPA 

conducted at agricultural facilities. According to these sources, and as described in more detail in this 

section, the key characteristics of the U.S. agricultural sector include: 

Ninety-one percent of farms are small farms with less than $250,000 in annual sales. 

Approximately 98 percent of farms are family farms. 12· 

13 

Most farms are small in terms of surface area, with only fifteen percent of all farms having more 

than 500 acres of land, 14 although certain types offarms tend to be larger in surface area than 

others. For example, oilseed, grain, and cotton farms tend to have larger acreage than farms 

growing other types of crop. 

Expenditures on gasoline, fuel, and oil at farms tend to positively correlate with farm acreage. 

Average gasoline, fuel, and oil expenditures per acre further vary by type of crop. 

As of2005, farmers were often not aware of the SPCC requirements and often did not have 

secondary containment (i.e., berms, spill kits) to prevent oil discharges. 

Inspected farms store varying quantities of oil, with total capacity ranging from less than 

2,000 gallons to upward of 50,000 gallons. These farms often lacked adequate spill containment 

to prevent the discharge of oil to navigable waters on adjoining shorelines. 

2.1 Farm Size 

As shown in Exhibit 3, approximately 40 percent of the roughly two million farms in the United States are 

less than 50 acres in size, and about 15 percent offarms are 500 acres or larger. 

!2 

IJ 

To support this study, USDA provided a breakout of farm production expenses for 2013 that includes fuel expenditures by 

region (Northeast, Lake States, Corn Belt Northern Plans, Appalachia, Southeast, Delta, Southern Plains, Mountain, and 

Pacific), fuel type (gasoline, diesel, natural gas, LP gas, etc.), and economic class (Less than $100,000,$100,000 to 

$274,999, $275,000 to $499,999, etc.) 

USDA defines family farms as " ... operations organized as proprietorships, partnerships, or family corporations that do not 

have hired managers," and classifies small family fanns as those with annual sales ofless than $250,000. USDA, Economic 

Research Service, "Structure and Finances of U.S. Farms: 2005 Family Farm Report"/EIB-12, May 2006. 

USDA, Economic Research Service, "Structure and Finances of US. farms: 2005 Family Farm Report"/EIB-12, May 2006 

According to USDA, land in farms includes ''land owned and operated as well as land rented from others." (Appendix B 

General Explanation and Census of Agriculture Report Form. 2012 Census of Agriculture) 

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Exhibit 3: Percent of farms by farm size (acres of harvested cropland). 

25% 

i 20% 

.. "j 15% 

0 10.6% 

f 10% 

.!: " 

5% 

O% 

27.9% 

L1% 

IIIII 

1 to 9 10 to 50 to 70 to 100to 140 to 180 to 22:0 to 260 to 500 to 1,000 2,000 5,000 

49 69 99 139 179 219 2~9 499 999 to to or more 

1,999 4,999 

farm Site in Acres. 

Source: Developed using data from USDA, National Agricultural Statistics Service, 2012 Census of Agriculture, 

The size of farms in acres varies by type of crop, with cotton, cattle feedlots and oilseed and grain farms 

having the largest number of acres on average (Exhibit 4). Exhibit 5 shows the distribution of farms of 

various types across farm size categories. As shown, oilseed and grain farms represent a significant share 

of the larger farms by size, with cotton farms and cattle feedlots also concentrated in the larger farm size 

categories. Other farm types such as nursery and fruit and tree nut farms tend to be smaller farms. 

Exhibit 4: Average farm size by type (in order of NAICS code). 

1,400 

L251 

1,200 

1,000 

866 

800 785 

I ! 600 I 5<4 

I 405 

400 307 307 

I 260 240 

200 191 142 I 160 

I 120 

• 85 

II II I ~ :; ~ 0 ~ :!' ~ 'E 1\' w ! . ] ' j ~ g ~ 2 

g " ~ ~ ] g ] l ~ ~ ~ (}. 

~ e 

ll . ~ r . B E; g _5: :0 ] 5 ~ ~ ~ e " g 6 

~ 1 ~ l li ~ 

~ ~· 

"' [ 

~ 

Source: Developed using data from { !SDA, National Agricultural Statistics Service, 2012 Census of Agriculture. 
98 


30329.091

Exhibit 5: Distribution of farms by farm size and type. 

100% 

90% 

80% 

70% 

60% 

SO% 

40% 

30% 

20% 

10% 

0% 

1 to 9 10 to 50 to 70to 100 to140 to180 to220 to260 toSOO to 1,000 2_000 

49 69 99 139 179 219 259 499 999 to 

L999 more 

Acres 

Antl'l"alaquanrtture 

Sheepa..,dgoat 

•Pou!tryan:degg 

CHogandjl"lj! 

'OarrvcatUcat'ldm•lk 

•C~tt!ef<>ed>ots 

Beef atlle r~ncMmg 

'~~Su~rrane,hayar~dothercrop 

Cotton 

•Tob<K~O 

"'Greenhouse, nursery, etc 

® FnHt~ndtreenut 

Vegetableandmelo" 

Otl>eedandgram 

Source: Developed usmg dataji'om USDA, National Agricultural Statistics Service, 2012 Census ofAgriculture. 

2.1.1 Gasoline, Fuel, and Oil Expenditures at Farms 

SPCC applicability is determined, in part, by a facility's aggregate oil storage capacity. While data on the 

size and location of individual oil storage containers on farms are not available, USDA collects data on 

fuels expenditure. For example, data from the 2012 U.S. Census of Agriculture presented in Exhibit 6 

suggest that average expenditures on gasoline, fuel, and other oils increase with increasing farm size. 

Exhibit 7 shows that these expenditures per acre also vary across farm types. Greenhouses and nurseries 

and vegetable farms tend to spend the most on gasoline, fuel, and oil per acre of operation, while beef 

cattle ranching tend to spend the least. At the farm level, however, total expenditures vary according to 

both the type and size of operations, with cotton farms having the highest average expenditures (Exhibit 

8). Overall, expenditures on gasoline, fuel and oil represented approximately 4 percent of total sales in 

2012. 

These fuel expenditure data may be used as an indicator of the quantity of fuel (and therefore the quantity 

of certain types of oil) that may be stored on farms. 

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30329.092

Exhibit 6: Average expenditure on gasoline, fuel, and oil by farm size. 

$80,000 

$70,000 

$60,000 

I 

~ $50,0<}0 

~ 1 $40,000 

:g 

$20,000 

$10,000 

$0 

1to9 10to4950to6970to99 lOOto 

139 

• II 140to 180to 220to 

179 219 259 

Acres 

I I 2:60to 500 to 1,000 to.2,000 or 

499 999 1,999 more 

Source: Developed using data from USDA, National Agricultural Statistics Service, 20 I 2 Census of Agriculture. 

Exhibit 7: Average per acre gasoline, fuel, and oil expenditure by farm type (in order of NAICS code). 

$160 

$140 

$120 

$100 

sso 

S60 

$40 

$20 

so I II I I • I I I 1111 c § 

~ ~ ~ ~ ] , 

'fl 6 ! 

~ j jj ~ ~ i5 ~ ~ !f i g g .E ·a 

8 " r ~ ~ J! ~ 

?' ~ ii , 5 

~ 0 E I t 

ii I E 

~ *' 8 ~ 

~ 1 ] ~ 

~ i 

"' @ 

re, 

~ 

Source.· Developed using data ji·om USDA, National Agricultural Statistics Service, 2012 Census of Agriculture. 
100 


30329.093

Exhibit 8: Average gasoline, fuel, and oil expenditure by farm type. 

$45,000 

$40,000 

$35,000 

$30,000 

$25,000 

I $20,000 

$15,000 I I $10,000 I I I $5,000 

$0 I Ill 0 • • 5 .., c ~ c ~ 1' 0 if ~ ! 0 

·~ 11 • g ~ g E ] .E 

] ~ > 1 ~ ~ ~ 

~ ~ ~ 3 ~ ~ 

] ~ i5 . il r ~ 3 ~ 

~ J :a 1 0 ~ ~ ~ " ] 1 ] f 8 ~ 

t ~ "' :11, 

3: 

Source: Developed using data from USDA, National Agricultural Statistics Service, 2012 Census of Agriculture. 

2.1.2 Estimates of the Number of SPCC-Regulated Farms 

In the Regulatory Impact Analysis (RlA) supporting the final amendment to the SPCC rule (U.S. EPA. 

2008), EPA estimated that there were approximately 150,000 farms subject to the SPCC rule. In 

developing this estimate, EPA relied on data from the U.S. Census of Agriculture data on farm fuel 

expenditures and on assumptions regarding the quantity of fuel corresponding to reported fuel 

expenditures and the fraction of that fuel that is stored on site." For the purpose of this study, EPA used a 

similar approach to estimate the quantities of fuel used by farms and infer aggregate storage capacity, 

based on more detailed data provided by USDA for 2013. 

Exhibit 8 presents the distribution of farms by economic class, as well as their estimated aggregate oil 

storage capacity. Exhibit 10 shows the estimated distribution offarms by oil storage capacity. The ranges 

in the tables reflect different assumptions regarding the average number of fuel deliveries received by 

farms in a given year. While there is considerable variability across farms, the fuel expenditure data 

suggest that the vast majority of farms (81 to 89 percent) have an aggregate storage capacity below 

1,320 gallons of oil, 81 to 96 percent have less than 2,500 gallons, and 92 to 99 percent have less than 

6,000 gallons. An estimated 99 to 99.9 percent of farms have aggregate storage capacity below 

" The SPCC rule does not have a notification requirement that would identify the existence and storage characteristics of each 

SPCC-regulated facility. Therefore, estimates of the number of facilities that are regulated under the SPCC rule are usually 

developed from census figures of the number of establishments operatmg in oil-related industry sectors, and reasonable 

assumptions on the characteristics of these facilities. The U.S. Census of Agriculture provides a count of the number of 

farms operating in the United States. To accurately estimate the number ofSPCC-regulated farms, additional data on the 

size and location of oil storage tanks on all farms in the United States would be required; however, these data are not readily 

available. As discussed above, while data on farm fuel expenditures are available, these data do not typically provide details 

on the proportion of oil purchased that is stored on the farm. For these reasons, estimates of the number ofSPCC-regulated 

farms are based on various assumptions regarding oil consumption and storage that contribute to uncertainty in the 

estimates. 

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101 


30329.094

20,000 gallons and may be eligible to self-certify their SPCC Plan, provided they meet the other qualified 

facility criteria, including a clean spill history. 

Exhibit 9: Number and aggregate storage capacity of farms by economic class in 2013 

$10M or $5Mto $3M to $1M to $500,000 $275,000 $100,000 Less than to to to more $9.99M $4.99M $2.99M $999,999 $499,999 $274,999 $100,000 

--~ ---- -~---

Number of 2,643 6,926 11,979 70,235 68,887 80,408 156,421 1,697,970 farms 

Estimated 

average low1 26,105 13,609 7,246 4,069 2,340 1,652 898 154 

aggregate 

storage capacity High1 87,570 44,522 25,160 14,116 7,876 5,551 2,920 463 

(gallons/farm) 

Based on 2013 data from USDA on fuel expenditures by fuel type and by farms in different revenue categories (USDA NASS, 

personal communication). 

1 Range represents different assumptions of the number of fuel deliveries. For low bound (smaller storage capacity), EPA 

assumed 2 deliveries for gasoline and 4 deliveries for diesel per year; for high bound (greater storage capacity), EPA assumed 

1 delivery each for gasoline and diesel per year. 

Exhibit 10: Distribution of farms by aggregate storage capacity range in 2013 

Less than 1,320·2,500 2,50()..6,000 6,000·10,000 10,000·20,000 20,000 

1,320 gallons gallons gallons gallons gallons gallons or 

higher 

Number of farms low1 1,854,391 149,295 70,235 11,979 6,926 2,643 

High1 1,697,970 o' 236,829 68,887 70,235 21,548 

%of farms low1 88.5% 7.1% 3.4% 0.6% 0.3% 0.1% 

High1 81.0% 0.0% 11.3% 3.3% 3.4% 1.0% 

Based on 2013 data from USDA on fuel expenditures by fuel type and by farms in different revenue categories (USDA NASS, 

personal communication). 

1 Range represents different assumptions of the number of fuel deliveries. For low bound (smaller storage capacity), EPA 

assumed 2 deliveries for gasoline and 4 deliveries for diesel; for high bound (greater storage capacity), EPA assumed 1 delivery 

each for gasoline and diesel. 

2 USDA provides average annual fuel expenditures by economic class. As shown in Exhibit 9 above, the estimated average 

aggregate storage capacities for farms with expenditures in the two smallest fuel expenditure categories fall either below 

(463 gallons) or above (2,920 gallons) the 1,320- to 2,500-ga!lon range. 

2.2 Oil Storage Practices on Farms 

Since the 1920s, many farmers in the United States have relied on agricultural cooperatives for fuel 

supply and distribution. and some cooperatives have incorporated wholesale, refining, and even 

exploration and production of petroleum to guarantee a reasonably priced supply of fuel to their members. 

Local cooperatives typically handle retailing and farm facility delivery, while larger regional cooperatives 

handle other aspects of agricultural petroleum supply (USDA, 20 II). According to the USDA, seven 

regional and 2,500 local cooperatives distributed petroleum products to farmers in 1993 (USDA, 1996). 

Cooperatives represented approximately 41 percent of the total fuel sold for U.S. farm production, with 

90 percent of the 2,500 local agricultural cooperatives delivering petroleum products to farms (USDA, 

!996). 

In 2006, EPA reviewed information on farm oil storage provided by USDA and by local agricultural 

cooperatives that deliver fuel to farm facilities to characterize oil storage at farms. The characteristics 

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30329.095

included bulk storage container types, fuel types, container sizes, location and distribution within the farm 

facility (e.g., central vs. satellite oil storage areas). and frequency of fuel deliveries." 

Sources consulted in researching farm oil storage practices included the USDA report Fuel/Oil Storage 

and Delivery for Farmers and Cooperatives (USDA, 2005), a USDA study on cooperative petroleum 

operations (USDA, 1996 ), information provided by the Steel Tank Institute (STl) in response to EPA 

questions, and eight telephone interviews six with representatives from local farm cooperatives from 

different states and two with individual fuel! oil delivery companies in states where no local farm 

cooperatives that deliver fuel could be identified. 17' 

18 These sources provide detailed data on oil storage 

practices on farms. For this study, EPA augmented the information with data provided by USDA, reports 

of SPCC inspections EPA conducted at farm facilities, EPA site visits at selected cotton ginning 

operations, dairy farms, and rice farms, and state tank registration data. The following sections summarize 

the findings. 

Note that given the lack of a comprehensive national database of oil containers at farms, the information 

provided below is necessarily anecdotal and based on a small subset of the very large and diverse number 

of farm operations in the United States. Additionally, while some oft he information is based on data and 

interviews from the early to mid-2000s, EPA expects that the information still provides relevant insight 

on oil storage practices given the expected life of oil storage containers, although the Agency also 

recognizes that farmers may have changed their oil storage practices following amendments to the SPCC 

rule requirements for farms, multiple extensions to compliance dates, and outreach and compliance 

assistance by EPA and USDA. 

2.2.1 Aboveground and Underground Oil Storage on Farms 

Farms store fuel in both aboveground and underground storage containers. 

In interviews EPA conducted in 2006 with farm cooperatives and fuel delivery companies, cooperatives 

from Minnesota, Iowa, Kansas, Nebraska, the Eastern Region, and Florida noted that they delivered 

exclusively to aboveground tanks on farms (although EPA's review of Florida Department of 

Environmental Protection (FLDEP) tank registration data discussed further in Section 2.2.3 did reveal the 

presence of underground storage tanks at farms). 

2.2.2 Types of Fuel Stored on Farms 

Farms typically have more than one oil storage container to accommodate different types of fuel (diesel or 

gasoline), and the type of fuel stored may influence the container size. 

The interviewees suggested that the type of fuel stored influence the size of storage tanks farmers used. 

For example, two interviewees noted that dyed diesel (off-road) tanks typically had at least twice the 

storage tank capacity of clear (on-road) diesel and gasoline tanks. Because most farms store more than 

one type of fueL interviewees estimated that 90 to 95 percent of farms have more than one storage tank 

While EPA's review focused on the storage of fuels used in f3rming operations, other types of oils may also be present at 

farm facilities (e.g., lubricants, animal fats and vegetable oils). EPA is assuming that these other oils would generally 

represent a small fraction of a farm's total oil storage capacity. 

The 2005 USDA Survey collected data from I ,712 farmers and 387 farmer cooperatives regarding oil storage tank capacity 

and location~ the 1996 USDA Report is an industry overview of cooperative petroleum opcrat1ons. including the history of 

the farmer cooperative petroleum system and summary statistics_ 

EPA identified eight geographically diverse areas and found local cooperatives or fuel delivery companies that delivered 

fuel to farms. The term "interviewees" in this discussion refers to the eight representatives EPA contacted in 2006 

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103 


30329.096

for fuel products. One interviewee, however, noted that only large operations have all three types of fuel 

on site, and that smaller fann operations typically only have dyed diesel and gasoline. For farms with 

relatively larger tanks (over 5,000 gallons storage capacity), the largest tank is typically used to store 

diesel for agricultural use. Interviewees from Pennsylvania and Florida and the Eastern Region indicated 

that all farms have dyed diesel, and a small percentage of fanns store additional types of fuel (an 

estimated five percent in Eastern states, and one percent in Pennsylvania). 

EPA's review of the FLDEP tank registration data (see Section 2.2.3 for more details) provides a more 

nuanced picture of oil used on Florida farms, with relative storage capacities of different types of oils 

seeming to vary depending on the type of farms. While most farms store diesel, many nurseries and citrus 

groves also have significant quantities of fuel oil for onsite heat. 

All28 Concentrated Animal Feeding Operation (CAFO) facilities EPA inspected between 2001 and 2005 

stored diesel and/or gasoline on site, with some facilities also storing waste oil. 19 

2.2.3 Oil Storage Container Size on Farms 

The 1996 USDA report cited the typical on-farm storage tank capacity as 250 to 1,000 gallons. 20 But there 

is considerable variation across farms depending on the region, type of operations and size. 

With one exception, all interviewees contacted in 2006 agreed that 1 ,000-gallon tanks are typical on 

farms; however, large farm operations commonly have tanks between 7,000 and 10,000 gallons according 

to the interviewees, or between I 0,000 and 12,000 gallons according to STI.21 All interviewees agreed 

that large farm operations (defined by the interviewees as farms covering over 2,500 acres) have larger 

tanks, with storage tank capacities ranging from 7,000 to 10,000 gallons. For example, interviewees from 

the local cooperatives and ST1 noted that a I ,000-gallon tank size was typical, and added that the overall 

trend has been towards increasing tank storage capacity. One interviewee noted that fanns with storage 

tank capacities less than 1,000 gallons were typically fanns of only a "few hundred acres" in size. Most 

interviewees represented regions with row crops (corn, soybean, wheat), which, as noted in Section 2.1, 

tend to be larger fann operations in tenus of acreage. Interviewees from states with significant shares of 

non-row crops such as Oregon and Pennsylvania, however, noted similar capacity ranges and relationship 

to farm size. lnfonnation provided by STI noted a higher average tank size at fanns of between 10,000 

and 12,000 gallons. According to STI, tanks of this size are vertical, single-walled with emergency vents, 

whereas I ,000-gallon tanks do not have emergency vents. 

In contrast, the interviewee from Florida estimated the average fann AST capacity at 500 gallons, and 

noted that the average has been decreasing in recent years, which the interviewee indicated was due to 

state registration requirements for containers with storage capacity of 1,000 gallons or greater (see Section 

2.4 for a discussion of state requirements applicable toASTs at fanns in Florida). This observation is 

con finned by EPA's separate review of FLDEP petroleum storage system data conducted in January 

2015. Specifically, EPA obtained registration data for active aboveground storage tanks at facilities 

'" 

20 

" 

Personal communication, Melissa Pay an. EPA Region 8, November 26, 20 14. 

The 2005 USDA Survey gathered data on aggregate oil storage capacity for farm operations, and did not include questions 

about storage container capacity. 

Farm cooperatives and fuel delivery companies from Minnesota, Iowa, Kansas, Nebraska, the Eastern Region, and Florida 

noted that they delivered exclusively to aboveground tanks on farms. Interviewees ffom Oregon and Pennsylvania suggested 

that as many as half oft he farms receiving fuel delivencs did so to underground storage tanks, with the interviewee from 

Pennsylvania indicating that underground storage tanks are primarily for greenhouses and mushroom farms, whereas open 

crop farms typically have aboveground storage tanks. 

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categorized by FLDEP as ''agricultural". These facilities include various types of farms such as citrus 

groves, nurseries, cattle farms and ranches, tomato and other vegetable farms, and dairies. Exhibit 11 

summarizes farm AST registrations from a sample of counties that include the three Florida counties with 

the largest number of farm operations, according to the 2012 U.S. Census of Agriculture, as well as a 

random sample of four other counties among the total of 67 counties in the state. The county with the 

largest number of farms in the state, Marion County with 3,870 operations, has only 24 facilities with 

ASTs registered with FLDEP. Of these, only three farms have at least 2,500 gallons in aggregate capacity, 

two have at least 6,000 gallons in aggregate capacity and none exceed 20,000-gallon threshold. Therefore, 

farms in that county are either exempt from SPCC altogether (the vast majority), or can self-certify their 

plan, provided they meet other criteria such as a clean spill history. A somewhat larger number of farms 

have registered ASTs in Hillsboro County (87 farms), but this is still a very small subset (4 percent) of the 

total farms operating in the County, and 82 percent of the farms have less than 2,500 gallons of oil in 

registered ASTs and are therefore exempt from SPCC altogether. 

Exhibit 11: Distribution of farm aggregate storage capacity in selected counties in Florida. 

2012 Census of Number of farms by registered AST capacity range 1 

Florida Agriculture Number of farms 

-· .. --~--·----~-

County with registered Number of County less than ASTs 2,500-6,000 6,000-20,000 20,000 gallons 

farms ranking 2,500 gallons gallons gallons or greater 

Brevard 513 34 0 

Broward 615 29 0 0 

Clay 402 42 0 0 

Collier 319 48 0 

Dade 2,954 2 12 

Hillsboro 2,466 87 71 

Marion 3,870 24 21 

State Total 47,740 N/A Information not available 

1 Florida regulations at Chapter 62~762 require only AST systems with individual storage tank capacity greater than SSO gallons to be 

registered with the state. EPA notes, however, that the registration database lists individual ASTs with capacity below this threshofd. 

Source: U.S. EPA Analysis of FLDEP data, 2015 

2 

0 

0 

0 

4 

Site visits EPA conducted at three different types of fann operations in May 2005 (cotton ginning 

operations in Notth Carolina), June 2006 (dairy farms in Western New York) and January 2007 (rice 

fanns in Arkansas) provide additional insight on oil use and storage on these types of farms. Cotton 

ginning used oil in hydraulically powered bale presses. Dairy farms tended to use diesel. as well as small 

quantities of other oils (e.g .• lubricants). Rice farms used diesel-powered wellhead andre-lift pumps to 

flood or drain the fields. Containers at rice farms tended to be distributed across the farm, with close to 

half of the total storage capacity at satellite locations. 

As summarized in Exhibit 12, of the six cotton ginning operations EPA visited, four had more than 

2,500 gallons in aggregate oil storage and only one had more than 6,000 gallons. As shown in Exhibit 13, 

two of the seven dairy farms EPA visited had less than 2,500 gallons of oil (primarily diesel, but also 

gasoline, waste oil, and lubricants, excluding milk containers) on site, one dairy farm had less than 6,000 

gallons, and one farm had more than the 20,000-gallon threshold for self-certification. Both rice farms 

had more than 20,000 gallons of aggregate oil storage on site. 

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Exhibit 12: Oil storage capacity for cotton ginning operations. 

Type of Facility Farm Production Number of bulk Oil Storage Capacity (gallons) 

and Location (cotton bales per year) storage Bulk storage 

containers containers 

Cotton gins, NC 60,000 6,500 

40,000 2,555 

30,000 1,055 

28,000 2,000 

25,000 2,305 

25,000 500 

Source: U.S. EPA, 2005 

Exhibit 13: Oil storage capacity for dairy and rice farms. 

Type of Facility Farm Production 

and Location 

Dairy farms, NY Dairy and crop: 3,200 acres, 1,600 cows 

Dairy and crop: 2,500 acres 

Dairy only: 2,500 acres, 750 cows 

Dairy only: Unknown acres, 1,000 cows 

Dairy and crop: 1,200 acres, 800 cows 

Dairy only: 550 acres, 170 cows 

Dairy only: 200 acres, 600 cows 

Other farms, NY Hog and vegetables: 1,200 acres 

Orchard 

Rice farms, AR 3,500 acres 

2,300 acres 

Source. U.S. EPA, 2006 and 2007 

Number of bulk 

storage containers 

4 

15 

18 

23 

Oil-Filled Total Equipment 

2,350 8,850 

1,750 4,305 

850 1,905 

840 2,840 

1,640 3,945 

1,410 1,910 

Oil Storage capacity (gallons) 

Largest tank Total 

14,000 15,000 

15,000 30,660 

10,000 16,050 

10,000 12,300 

3,500 4,500 

500 915 

500 610 

2,000 2,500 

500 1,000 

15,000 30,350 

12,000 42,000 

Finally, other information obtained fi·om EPA regional staff reveals similar variations across regions. 

EPA inspectors in Region 7 typically see I ,000- to I 0,000-gallon single- and double-walled ASTs, drums 

and totes for reuse. and 200- to 1,000-gallon nurse tanks at farms. CAFO facilities EPA inspected 

between 2001 and 2005 in Region 8 had container sizes ranging trom less than 200 gallons to over 

12,000 gallons. Almost all the facilities had several containers, with an average slightly below three 

containers per facility; for example, one inspected facility had one 4,200-gallon container for gasoline. 

one 500-gallon container for diesel, and one 300-gallon container for waste oil. Farms inspected in EPA 

Region l 0 between 2008 and 2012 had similar varying characteristics, with container sizes ranging 

between 660 gallons and I 0.000 gallons, number of containers ranging from 2 to 11, and total storage 

capacity ranging from 1,320 gallons (a vegetable/melon farm) to over 50,000 gallons (a dairy farm). 22 

2.2.4 Oil Storage Container Distribution on Farms 

Inquiries into the distribution of storage containers on farms yielded mixed results. Interviewees contacted 

in 2006 suggested that I 0 to 30 percent of farms have more than one fuel storage tank location. This 

proportion is lower than suggested in the 2005 USDA Survey, in which 47 percent of farmers had storage 

tanks in more than one location. All sources indicated that farms with storage capacities of7,000 to 

Personal communication from inspectors in EPA regions, 2014. 

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30329.099

10,000 gallons typically have storage in one central location, presumably because they may be using a 

single larger storage tank. 

Six of eight interviewees, and all interviewees from local cooperatives, agreed that the majority of farms 

have centralized storage locations, and, when asked how many farmers have more than one fuel storage 

tank location, their responses ranged from 10 to 30 percent. Six out of seven interviewees agreed that all 

larger farms have centralized fuel storage in one location. One interviewee who stated that large farm 

operations had storage in more than one location noted that large farm operations still comprised only 25 

to 30 percent offarms with multiple oil storage locations, citing the existence of multiple farmsteads as 

the primary reason for larger farms to have several fuel storage locations. Interviewees noted that farms 

with multiple storage locations were typically I ,000 to 2,000 acres in size, citing distance between farm 

parcels as the primary reason tor farms having multiple oil storage location. Interviewees also noted that 

farms with multiple storage locations typically have smaller storage tanks that are less than I ,000 gallons 

each at the satellite locations. The fuel delivery service interviewees from Pennsylvania and Florida were 

the exceptions. The Pennsylvania interviewee indicated typically delivering fuel in multiple locations for 

greenhouses, the type of farm serviced by this particular delivery company. The Florida interviewee 

indicated that almost all citrus farmers have dispersed fuel storage because diesel engines are needed to 

pump water from wells around the farm for irrigation purposes. The Florida interviewee noted that 

storage for other farm equipment was centralized (e.g., in the barn). The interviewee further noted that 

while farmers typically have two or three diesel tanks around wells, one large farm operation had 50 tanks 

dispersed throughout the facility. 

Exhibit 14: Excerpted results of 2005 USDA Survey: Farmer questionnaire responses to Questions 

9aand9b. 

All Total Aggregate Oil Storage Capacity {gallons) 

Response Respondents < 1,320 1,320-5,000 5,001-12,000 12,001-29,999 > 30,000 

# % % % # % % % 

Question 9a. Are storage tanks in one location? ---------- YES 810 53% 331 72% 304 47% 105 50% 63 36% 6% 

NO 717 47% 131 28% 338 53% 103 50% 114 64% 29 94% 

Question 9b. How many tank sites exist? 

Number 4,174 334 8% 2,489 60% 462 11% 559 13% 330 8% 

Notes: 

1 Responses to this question indicate the number of tank sites for all1,527 farmers responding to th1s question, and the total number of tank 

sites at farms by total aggregate oil storage capacity, For example, there were 4,174 total tank sites reported for a!l1,527 farmers responding 

to the questions, 

Source: USDA, 2005 {Table 1), 

Data presented in Exhibit 14 suggest that the proportion of farms with multiple storage locations increases 

with total storage capacity. In contrast, the interviewees indicated that larger farms tend to centralize fuel 

storage. While this disparity may result from the small number of interviewees relative to the diversity of 

farm operations, a closer look at the 2005 USDA Survey data shows some similarity between the two data 

sources. 

Interviewees indicated that large farm operations typically had tanks of 7,000 to I 0,000 gallon capacities 

centralized in one location. The trend oflarger tank sizes at larger farms would mean that farms with a 

total fuel storage capacity of 5,001 to 12,000 gallons would most likely purchase a larger tank, and 

therefore more readily centralize fuel storage to one location. 

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While the overall trend in the 2005 USDA Survey indicates that larger farms have an increasing 

likelihood of storage in more than one location. the survey data also show a lower number of farms with 

multiple storage sites (Survey Question 9a) and number of tank sites (Survey Question 9b) in the 5,001-

to 12,000-gallon category. In addition, the USDA Survey shows a slightly lower incidence of multiple 

storage locations (three percent decrease) between the 1,320 to 5,000 and 5,001 to 12,000-gallon ranges. 

Moreover, responses to Question 9b indicated that the number of other storage tank sites for farms in the 

I .320 to 5,000-gallon range represented 60 percent of the other storage tank sites, a significantly higher 

proportion than any other storage capacity category. This is consistent with information provided by the 

interviewees. who indicated that farms with total fuel storage between 1.320 and 5,000 gallons are more 

likely to purchase multiple tanks of a readily available size (500 or I ,000 gallons). These multiple tanks 

are then more easily distributed among multiple fuel storage locations. 

2.2.5 Frequency of Fuel Delivery to Farms 

All interviewees EPA contacted in 2006 agreed that commonly sized fuel storage tanks (1 ,000 gallons) 

are typically refilled three to four times per year, and that larger tanks (7.000 to 10,000 gallons) require 

less frequent deliveries- typically one per year. This delivery frequency suggests that fuel demand for 

larger farms (with larger storage tanks) may be 14,000 to 20,000 gallons per tank per year. At the other 

extreme, one interviewee noted that about ten percent of farmers have oil deliveries I 0 to 15 times per 

year. Farmers with frequent deliveries typically have tanks of 500 gallons or less, or high fuel 

consumption. The Florida interviewee noted that most farms receive delivery to their 500-gallon tanks 

weekly during the peak season. Another interviewee stated that some farmers have extremely frequent 

delivery, sometimes twice a week, and noted that these farms are the highest priority for "right-sizing," or 

matching tank capacity with farm fuel needs in order to reduce the frequency of fuel deliveries.21 

Apart from the fuel delivery cost savings associated with increasing storage tank capacity, one 

interviewee noted that it is more opportunistic to purchase fuel at certain times during the year, outside 

the peak season when prices are higher. This interviewee noted that the cost savings that result from 

buying off-peak, as well as the possibility of fuel supply disruption, may explain why some farmers, 

especially large operations. increase storage tank capacity. 

2.2.6 Spill Containment Structures 

Spill containment is one of the most effective methods for preventing discharges of oil to navigable 

waters or adjoining shorelines and is a core element of the SPCC Plan. 

Inadequate secondary containment is often noted as a contributing factor in discharges of oil to navigable 

waters or adjoining shorelines, from a wide range of facilities, including farms (see Section 3.1). Yet, of 

the 28 CAFOs EPA inspected between 2001 and 2005, more than half(l6 facilities) lacked SPCCmandated secondary containment for bulk storage containers at the time of the inspection.24 Further, 

inspectors noted evidence of past or active oil discharges at several of these facilities,25 highlighting the 

potential for oil to reach waters of the United States. 

23 

25 

The interviewee from Florida stated that farmers are specifically down~sizing storage capacity and purcha<~ing 500~gallon 

tanks due to state registration requirements tOr tanks I ,000 gallons or larger. The interviewee noted that while this trend 

goes against the fuel needs tbr these farms (citrus growers), farmers may purposely not "right*size'' due to state regulatory 

concerns. 

Personal communication, Melissa Payan, EPA Region 8, November 26, 2014. 

In their inspection notes, EPA inspectors noted one farm that had reported a discharge I 00 to 300 gallons due to an overfill, 

and another five farms showing signs of past discharges such as large areas of contaminated soil around the tanks. 

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30329.101

These findings are consistent with the 2005 USDA survey26 which indicated that over 90 percent of the 

surveyed facilities lacked adequate containment. The need to address current inadequacy of containment 

is one reason cited for farmers to want to remove tanks they no longer use as these tanks are not 

compliant with spill prevention and control requirements (KWCH 12 News, 20 14). 

As discussed in Section 2.4, secondary containment is required not only under the SPCC rule, but also by 

state regulations and local ordinances that follow the fire code. Preparation of an SPCC Plan may be what 

prompts farmers to consider the potential spill risk from their facility and to address that risk before they 

incur the potentially higher costs of cleaning a spill. However, correcting inadequate secondary 

containment is likely the most significant cost to a farmer of complying with the SPCC rule, as compared 

to the relatively low cost of preparing the actual Plan, particularly in the case of a self-certified Plan.27 

The USDA Natural Resources Conservation Service (NRCS) conducted a pilot program to assist 

producers in developing SPCC Plans and construct adequate secondary containment. The pilot program 

ran for three years during 2011,2012, and 2013. Under the Pilot, farmers that were required to have a 

plan prepared and certified by a registered PE (i.e., fanns exceeding I 0,000 gallons aggregate aboveground storage capacity) could receive funding through the Environmental Quality Incentives Program 

(EQIP) to develop a plan and/or install secondary containment." Farmers requesting assistance to 

construct secondary containment for their tanks had to provide an SPCC Plan (either PE-ccrtified or selfcertified) indicating the need for such containment. The NRCS Pilot was carried out in eight states (Idaho, 

Louisiana, Montana, North Carolina, North Dakota, New York, Oklahoma, and Texas), and of the plans 

produced, 93 percent came from three states (North Dakota, Louisiana, and Montana) with 79 percent 

coming from North Dakota alone. Additionally, the plans were all for facilities with greater than I 0,000 

gallons of aboveground aggregate storage capacity, so these plans do not provide information on the 

characteristics of farms with aggregate above ground storage between 2,500 and 6,000 gallons. 

As of September 2014, NRCS has released a new national conservation practice standard for On-Farm 

Secondary Containment Facility (Code 3 I 9).29 Exhibit 15 shows the typical cost of secondary 

containment estimated by NRCS to calculate incentive payment rates for Farm Bill programs for Fiscal 

Year 20 !5. The typical cost of secondary containment is expected to vary depending on the region, 

containment approach (e.g., replace single walled tanks with double walled tanks, add concrete wall 

enclosure, add earthen storage lined with a flexible membrane), and storage volume. The Payment Share 

Rate depends on the state.30 Note that the typical facility cost estimates in Exhibit 15 are speculative given 

26 

27 

29 

lO 

FueliOil Storage and Delivery for Farmers and Cooperatives (USDA, 2005) 

In the 2008 RIA, EPA estimated that small facilities such as farms (Tier I qualified storage facility) spend $1,320 to 

$19,800 (2007 dollars) on installing secondary containment for their bulk storage containers. depending on berm dimensions 

and material, as compared to less than $200 on Plan preparation when following the template (U.S. EPA, 2008). 

A primary purpose ofEQIP is to a~sist agricultural produ<.-"ers comply with environmental regulation and permit 

requirements. Under the Pilot, NRCS defined two interim EQIP practices: SPCC Conservation Activity Plan (Code 150) and 

Agricultural Secondary Containment Facility (Code 710). 

Description of the practice is available at http:f.!wvo;\v.nrcs.u'ida.gov:lnternet:T:sr-: DQ_t,~.~fi:~TS stelnrQlJ !263508.pdf 

(accessed January 20, 2015) 

The payment rate is a percentage of the dctennined typical cost The percentage is determined on a state to state basis and 

may also vary from year to year. The payment rate can be higher for Historically Underserved (HU) groups including 

socially disadvantaged, beginning and limited resource farmers, Indian tribes and veterans. For example, in Delaware the 

payment rate in FY 2015 for Practice 319 was 75 percent (90 percent for HU) of the estimated average cost, or $100.76 per 

cubic yard ($120.91/cubic yard for HU) for earthen containment. Idaho's pa}ment rate was $21.22 per cubic yard 

($31.83/cubic yard for HU) for earthen containment. State by state information is available at 

http://www.nrcs.usda.gov.'\\\)SillOrtal:nrcs/dctai!tnationalJ2rografilli!l!nJH!£inl;cgipl'~~.i4::=1llf_~H3 OQHlfJ. (accessed May 

14, 2015) 

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the very limited experience ofNRCS State Offices with this practice so far. Data are not yet available on 

the number of farmers receiving funding for the practice and the amount received. 

Exhibit 15: Approximate cost of on-farm 

secondary containment facility EQ/P practice 

Capacity (gallons} Estimated typical cost 

1,000 $2.400 $6,000 

3,000 $3.700 $6,000 

4.700 $3,200 $11,200 

10,000 $6,600 $15,000 

Source: USDA, 2015 {personal communication) 

2.3 Uniqueness of Farms and Similarity in Storage Practices to Other Facilities 

As reflected in the farm profile of Section 2.2, farms share similar characteristics with other types of 

SPCC-regulated facilities with respect to the types of oil products stored on site, the number and size of 

oil tanks, and oil stomgc practices. EPA evaluated these storage practices as part of its rulemakings to 

streamline the rule requirements for facilities with smaller aboveground storage capacities, including 

farms (see Section 1.1). 

As noted in the regulatory record, after reviewing the infonnation provided by the agricultural industry on 

proposed rulemakings, EPA concluded that there was insufficient evidence to provide an exemption 

specific to farms or make changes to regulatory thresholds since the types of tanks and oil storage 

conditions at farms were generally similar to those of other facilities, with similar potential for discharge 

(see relevant excerpts below). EPA did recognize some unique characteristics of farms in terms of 

geographic scale, configumtion, land ownership and lease structure, and on-farm activities, and provided 

flexible rule provisions that benefit all small facilities and specifically farmers. For example, as described 

in Section 1.1, EPA considered the characteristics of farms when it amended the SPCC regulation to 

provide additional flexibility for a number of the regulatory requirements (see 72 FR 58383, October 15, 

2007) or to define farms for the purpose of the SPCC regulation. It also considered the need of the 

agricultural industry in providing farm-specific extensions to the compliance dates. 

EPA concluded that while farming operations may be unique, the storage tanks found at farms are similar 

in function and design as those found at other types of facilities, and therefore have a similar potential for 

discharge (see 73 FR 74242, December 5, 2008). Specifically, as stated at 73 FR 74242: 

EPA continues to believe that there is insufficient data to support an outright exemption exclusiveZv for 

farms beyond the existing aboveground storage capaci(y threshold ~f 1,320 US gallons that applies to all 

facilities (§ 112.1 (d)(2)(ii)). As noted previously, no data was provided by the commenters to support such 

an exemption. 

[. .. / Commenters did not provide sujjicient data to support an increase in !he Tier lthresholdforfGrms 

higher than proposed. For more information on Tier I and Tier II qualified facilities, see Section VG of 

this notice. EPA also disagrees that the amendments to the SPCC rule in December 2006 provide "special 

treatment" to any eligible facility. Farmers, small businesses, and other small oil storage facilities may be 

eligible to self-cert(fy their SPCC Plans if they meet the eligibility criteria for qualified facilities in 

§ 112.3(g). In providing this optionfor fi<cilities handling smaller amounts of oil, the Agency sought to 

focus on those smaller, less complex operations that may be concerned about the impact of using aPE on 

their limited budget. Some of the current noncompliance with the SPCC regulation may be allributed to 

those concerns. 71ze Agency believes rhat providint; a slreamlined option for owners and operators of these 

smaller, less complex facilities should improve the overall compliance for the SPCC regulation, ultimately 

resulting in greater enl'ironmental protection (7 1 FR 77270, December 26, 2006). The mvners and 

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30329.103

operators of farms, small businesses and other small oil storage facilities may be eligible to self-certifY 

their SPCC Plans if they meet the eligibility criteriafor qualified facilities in§ 112. 3(g). 

[ ... ]With respect to an alternative "quaf!fied facility" threshold. EPA considered the commenters' 

suggestions for modifying the existing qualified facilities threshold of /0,000 U.S. gallons total 

aboveground storage capacity. However, the agricultural community did not provide information that 

would lead the Agency to conclude thatfarms are sufficiently differentia warrantfill'lher differentiation 

from other facilities that store oil. In fact, EPA believes that many non-farm facilities could have similar 

needs to purchase identical storage needs as identified by agricultural stakeholders. Thus, EPA is not 

persuaded by these comments to raise the existing qualifiedfacilities threshold solelyforfarms beyond 

10,000 U.S. gallons. In setting the qualified facilities threshold a/10,000 U.S. gallons in the December 

2006 amendments, EPA sought to provide an alternative for facilities, among other things, with simple oil 

storage configurations and smaller quantities of oil handled (see 71 FR 77271, December 26, 2006). I.:.'!' A 

continues to maintain that the focus of the qualified facilities alternative should be on simple configurations 

and small quantities of oil stored or handled. It should also be noted that, as described in Section V.G of 

this notice, EPA isfina/i:ing a multi-tiered approach to allow the owner or operator of afacilily that meets 

the eligibility criteria for a qualified facility to se(j'certifo his SPCC Plan. and allow the owners or 

operators of a subset ()fqualifiedfacilities (i.e., "Tier I qualified facilities") 10 complete the SPCC Plan 

template in Appendix G of this part in lieu of preparing ajidl SPCC Plan. EPA believes that the Tier I 

qualified facility alternative should focus on facilities with the simplest cof!figurations and smallest oil 

storage containers. 

2.4 State Regulations of Oil Storage at Farms 

This section summarizes state AST programs and discusses the applicability of these programs to oil 

tanks at farms. 31 Appendix A provides a state-by-state summary of requirements applicable to farm tanks, 

based on EPA review of program information and regulations in each state. 

A unified format for state AST programs does not exist. Two primary state agencies regulate ASTs: state 

fire marshals and state environmental departments. Of the 44 states that operate formal AST programs, 32 

24 states have AST programs administered by the environmental department (or its equivalent). In the 

other 20 states, the State Fire Marshal has authority over ASTs through implementation of a fire code, 

such as the National Fire Protection Association (NFPA)33 Uniform Fire Code or the International Fire 

Code (IFC), both of which have guidelines for flammable and combustible liquid storage and handling." 

Specific requirements and thresholds for state AST program regulatory applicability vary. Several states 

)l 

32 

)4 

States also typically have programs specific for USTs but these containers are of lower inh:rest for this study given the tbcus 

on farms that store between 2,500 and 6,000 gallons of oil in aboveground containers. 

For the purpose of this report, a ''formal" state AST program consists, at a minimum, of a registration or permitting 

requirement for ASTs with a state agency. Note that the seven states without a formal state AST program still regulate ASTs 

through the fire code, but registration and pennitting (if any) is done through county or local governments 

NFPA is an international nonprofit that serves as an advocate of fire prevention primarily through NFPA codes and 

standards, which number over 300 and address building, process, service, design, and installation. NFPA codes are 

referenced in many state tire codes, frequently with state deferral to NFPA standards. 

The fire codes contain requirements for tanks containing flammable liquids by specifying design and construction standards 

(e.g., material, design, venting), installation requirements (e.g., locatiOn including separation ffom buildings, public ways 

and other tanks, signage), overfill protection, and requirements for dispensing equipment. Note that states regulations may 

have additional requirements beyond those in the fire codes, for example regarding secondary containment for fuel storage 

areas_ 

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30329.104

require permitting and/or registration of ASTs that exceed a specified individual or aggregate capacity. 35 

States may also have additional requirements such as inspection and secondary containment for tanks 

above a specified capacity. 

Exhibit 16 summarizes state AST programs. Nine states, identified separately in the table (i.e., Arkansas, 

Colorado, Kentucky, Minnesota, New Mexico, Oklahoma, South Dakota, Vermont, and Wyoming), 

exempt farms from AST requirements applicable to other types of facilities. As discussed later in this 

section, other states may provide specific exemptions for farm tanks below a specified individual or 

aggregate capacity threshold. These exemptions do not necessarily mean that farm tanks have no 

requirements. Farmers still need to comply with any applicable fire safety ordinances, but they are not 

required to register the tanks, obtain a permit, etc. under the state-wide program that otherwise applies to 

other types of ASTs.36 

Exhibit 16: Summary of state AST programs (States with specific farm exemptions underlined) 

Agency Administering State AST 

Program 

Programs administered by 

Environment Protection Department 

or Equivalent 

... but exempt farm tanks 

Programs administered by State Fire 

Marshal or equivalent 

... but exempt farm tanks 

Subtotal- States with AST Program 

No State AST Program (Requirements 

administered by local/county 

governments) 

Number of 

States 

16 

8 

19 

44 

States 

AL, DE, FL, KS, LA, MD, NC, NH, NJ, NY, PA, Rl, TX, VA, WI, WV 

AR, CO, MN, NM, OK, SO, VT, WV 

AK, AZ, CA, IL, lA, IN, GA, MA, ME, Ml, MO, MT, NE, NO, NV, OH, OR, 

SC,WA 

KV 

CT, HI, ID, MS, TN, UT 

Exhibit 17 summarizes the oil storage capacity thresholds for farms tanks covered under state AST 

programs. As shown, the thresholds for fann tank storage capacity vary by state, and tend to mirror other 

federal regulations, such as the SPCC Rule (1,320-gallon threshold) and the UST rule at 40 CFR part 280 

and 281 (I, 1 00-gallon threshold). EPA identified 29 states that include applicability capacity thresholds 

for ASTs, of which seven states specify a different, higher threshold for farm tanks. The remaining states 

either do not have thresholds for farm tanks, or exempt farm tanks from state AST regulation altogether. 

Exhibit 17: Farm AST Capacity Thresholds 

AST Threshold for Farm Tanks (Gallons} 

>60 

>110 

>500 

>550 

Number of States States 

GA, ME 

ll,WI 

Rl 

Fl 

Where oil storage tanks must comply with flammable and combustible liquid storage and handling sections of state and local 

fire codes, the absence of more formally organized state AST programs, such as those administered by state environmental 

agencies or the State Fire Marshal, does not preclude ASTs from regulation. 

Note that other types ofASTs (e.g., ASTs at construction sites) may also be exempted from state programs or have higher 

applicability thresholds. Further, some state programs apply only to certain ASTS. For example, Wyoming requires 

registration of ASTs used to dispense fuel fOr retail sales, which excludes, by definition, farm tanks and ASTs that store fuel 

for on~site use. 

WRRDA Farm Study 26 
112 


30329.105

Exhibit 17: Farm AST Capacity Thresholds 

_A_S~"T"T:_h_re_s_h_o_ld_fi_or_F_a_rm_r;_a_n_ks_I_G_a_llo_n_s_J _____ -+_N_umber of States States 

>660 LA, NH 

>1,000 OR 

>1,100 lA, Ml 2

, NY, TX 

>1,100 (specific to farms) AL, DE, KS, MA, ND, PA, VA 

>1,320 AK, CA, LA1

, NH1

, WV 

>10,000 MD 

>21,000 NC 

>30,000 MT3 

>200,000 NJ 

Subtotal, State AST Programs with Thresholds for Farms 

No Threshold located 

All Farm Tanks Exempt 

Subtotal, State AST Programs without Thresholds for 

Farms or Exempting Farms 

29 

AZ, IN, MO, NE, SC, WA 

AR, CO, KY, MN, NM, OK, SD, VT, WY 

15 

Total, State AST Programs 44 -:N:-:ot-es" __ ____::__ __ """----"-"" _"1_ ______ ""----------"-----

1 State has an aggregate threshold as we!! as a tank threshold. 

" Michigan llmits tanks holding Class! llquids to 6,000 gallons and tank systems holding Class H or !I lA liquids to 15,000 gallons per tank or 

30,000 gallons in the aggregate. 3 Maximum capacity for compensation fund eligibility. 

Beyond the type of state or local program to which fann tanks are subject, and any applicable threshold, 

there may also be differences in the level of attention farm tanks receive from state or local authorities 

charged with ensuring compliance with environmental protection or safety requirements. EPA's review of 

public information on local Fire Ordinances and Fire Department programs suggests that the level of 

inspection and compliance enforcement varies depending on the jurisdiction. California's Health and 

Safety Code specifically calls for the triennial inspection of each farm to verify compliance with 

hazardous material (including gasoline and diesel) storage requirements for quantities above 55 gallons. 37 

Other jurisdictions specifically exclude farms from their inspection program. 38 

37 The program started in 200 l after an audit performed by the State of California in 1999 revealed that implementation of the 

hazardous material disclosure program on farms was incomplete. 

http· I /wv.w.solanocounty .com/depts/nn!cnvironmental_health!hazmat!farm _ hazmat_ faq.asp 

For example, the City ofBaraboo, WI specifically excludes farms from inspections conducted either once or twice a year at 

other types of commercial facilities Within the City Fire Department's jurisdiction 

(http://www"cityolbaraboo"comlinJex"asp?Type~B_BAS!C&SEC=%7BB55D077F-2005-4BE3-AABC7447CCA3F2C6% 7D&DE=% 7BB3073C9F -4670-4183-A5B6-0646F A271A5C% 7D) 

WRRDA Farm Study i 27 
113 


30329.106

3 Oil Discharges 

The 2005 USDA Study cited in Section 2.2 asked respondents to indicate whether they had experienced a 

fuel spill in excess of 1,320 gallons.39 Of the six respondents that had experienced this size spill (less than 

1 percent of the farmers surveyed), five had aggregate oil storage capacity of 5,000 gallons or less. Based 

on these responses, USDA concluded that the data suggest that the frequency of spills of that size from 

farms is small. However, these data also reveal that facilities with relatively small storage capacity may 

still he the source of discharges to navigable waters or adjoining shorelines well in excess of quantities 

that may be harmful. Further, the study did not address discharges ofless than 1,320 gallons of oil. 

The sections below describe past incidents from farm facilities (Section 3.1) and highlight the harmful 

effects that even small amounts of fuel oil discharges can have on receiving ecosystems (Section 3.2). 

3.1 Reported Discharges 

The National Response Center (NRC) is the federal government's national communications center and 

the sole federal point of contact for reporting hazardous substances releases and oil discharges that trigger 

federal notification requirements under several laws. Under 40 CFR part 110, the quantity of oil which 

causes harm and is reportable is a sheen (note that there are other triggering criteria other than a sheen, 40 

CFR part I 1 0). Upon receipt of an incident report, NRC ensures the deployment of appropriate response 

capabilities. NRC maintains a database of all incidents reported to the Center and publishes the data on its 

website. 

EPA reviewed the NRC data for the period of2010 through 2014 to identify reported oil spills that may 

be attributable to farms. An initial search focused on incidents where the responsible party or the incident 

description recorded by the NRC mentioned a farm or agricultural activities, but excluded those incidents 

that did not relate to farming activities (e.g., releases from a pipeline crossing farm land or from colocated oil production site), involved oils not typically used by farmers (e.g., crude oil, transformer oil), or 

for which the description of the incident did not enable EPA to conclusively determine that the incident 

was, in fact, farm-related. 40 EPA then conducted additional searches to get more inforn1ation about 

incidents reported to the NRC and to identify additional incidents not identified during the NRC data 

review. For example, EPA reviewed information from Pollution Reports prepared hy EPA On-Scene 

Coordinators (OSCs) participating in response activities prompting expenditures from the National Oil 

Spill Liability Trust Fund (OSLTF) resources, and information provided by EPA regional staff who 

responded to, or were informed of, spills from farm facilities. This second search revealed additional 

incidents that were either not reported to the NRC or for which the information provided in the NRC 

report was not sufficiently detailed to flag the incident in the first search (i.e., the report did not identify 

the responsible party, type of oil spilled, or otherwise provide any indication that it was related to a farm). 

This approach highlights the significant limitations of using the NRC data to evaluate spill risk. Spill 

incidents are not always reported due to lack of awareness of the reporting requirements or the 

information provided is preliminary and incomplete, making it difficult to conclusively establish the 

The survey did not solicit information on the location of the spills to determine whether the discharges affected waters or 

adjoining shorelines, nor did the survey aUdrcss smaller spills that may also reach waters. 

For example, EPA did not include NRC incident# 1024352 since it could not conclusively establish that the incident was, in 

fact, due to the farm operations ("caller stated that there is an unknown amount of diesel fuel discharging from the river 

embankment from a fann field into the Kalamazoo River. Caller stated that this has been ongoing tOr several days and they 

discovered spontaneous sheening at this location.") 

WRRDA Farm Study i 28 
114 


30329.107

source, cause, and impacts of the discharge. For example, a spill may be reported to the NRC and 

described only as a "mystery sheen" that upon further investigation turns out to have originated from a 

tank at a facility. The NRC report will not reflect the latter information. Incidents that do not prompt 

activation of state or federal government responders may not get investigated or recorded in other sources 

(e.g., newspaper, state or Federal emergency response reports), making it difficult to confirm the 

circumstances, magnitude, and impacts of a discharge. As discussed in Section 2.2, since available 

infom1ation suggests that many farmers are not aware of their obligations under the SPCC regulation and 

do not provide adequate secondary containment for their oil containers, many farmers may also not be 

aware of the federal criteria and reporting requirements for oil spills. 

The following example incidents are indicative of the types of spills originating from farms.ln EPA's 

experience, the causes and circumstances of incidents from farms are similar to those trom other types of 

facilities. These causes include overfills, tank settling, equipment failures (e.g., piping, appurtenances). 

and operator errors. l n several cases, the lack of secondary containment contributed to the discharge 

reaching waters or adjoining shorelines. A good prevention plan helps to avoid spills in the first place, 

and lessens environmental impacts caused when accidents occur. Spill prevention regulations require nontransportation-related facilities that store large amounts of oil to have a spill prevention plan that 

addresses the facility's design, operation, and maintenance procedures to prevtcnt spills from occurring. 

The plan must also include countermeasures to control, contain, clean up, and mitigate the effects of oil 

spills on waterways. Note that the examples below do not include the costs incurred responding to the 

discharge, nor do they include the costs for restoration, rehabilitation, or replacement of injured natural 

resources, unless noted). 

On January 5, 2002 approximately 564 gallons of diesel oil drained from an Arizona farm's 

storage tank and reached the Colorado River 30 feet away. The farm operates an irrigation 

pumping facility in connection with farming activities. The facility had three storage tanks 

holding a total capacity of 11,000 gallons of diesel oil. Two hunters noticed a strong odor of fuel 

coming from the Colorado River and notified the California Department of Fish and Game and 

the La Paz county sheriffs office, who discovered that the piping connecting the diesel tanks and 

the irrigation pump was disconnected. EPA officials responded to the spill, arranged for soil 

cleanup, and set up booms along the river to protect the local drinking water supplies and the 

Cibola Wildlife Refuge downstream. The responsible parties claimed that the spill was a result of 

vandalism. The farm did not have an oil spill response plan. EPA fined the landowner and the 

operator$ 1 1,000 for violations stemming from the incident. Following the spill, the responsible 

party replaced its tanks with a new tank located within secondary containment, and installed a 

new fuel line within the piping. The farm also prepared a spill response plan.'" 

On June 30, 2006, a diesel-powered pump, located on the bank of the Cuivre River, used to pump 

irrigation water to a nearby sod farm, developed a leak and released an estimated 80 to 

100 gallons of diesel fuel to the Cuivre River. EPA and the Missouri Department of Natural 

Resources (MDNR) responded. The EPA activated the OSLTF to pay for response costs in the 

event the responsible party did not cooperate in the clean-up efforts. The EPA and MDNR 

monitored the clean-up. The pump was about I 5 feet above the river on a bench, walled with 

concrete and filled with gravel. The gravel was stained with diesel fuel under the pump motor. 

The pump was otT when responders arrived and no fuel was leaking from it at that time. 

Sources 

http llyosemite.epa,gov/opa/admpress.nsll6427a6b75 3895 5c58525 735900311l23011 d73 7bh6 7d4296ac8525 70d8005e 159310 

penDocument&Start~ 12.1 O&Count~S&Expand~ 12.11 

WRRDA Farm Study 29 
115 


30329.108

42 

43 

44 

Responders observed diesel leaching into the river. The Old Monroe Fire Department reported 

that the day before they had seen a sheen with pools as far as a mile downstream of the spill site. 

Absorbent booms and hard booms were placed to secure the area of release. The pump base was 

excavated and diesel-contaminated gravel was removed for disposal.42 

On March 9, 2009, MDNR requested assistance from EPA concerning a diesel fuel spill that 

threatened the Chariton River. A relatively new 10,000-gallon AST at a farm had apparently 

settled due to heavy rains causing a pipe to fracture releasing almost all of the tanks' 7,000-gallon 

content. The material traversed a crop field and reached the Chariton River. A contractor was 

secured to assist with the cleanup with MDNR remaining on scene to document recovery of the 

material. By March 16,2009, the contractor had recovered 15,000 gallons of water that had an oil 

sheen, 5,300 gallons of diesel water mixture, and two 40-cubic-yard roll off boxes of 

contaminated boom and sorbent material. EPA assessed a civil penalty of$18,750 to the 

responsible party!3 

On February 23, 2010, a caller reported a spill of approximately 2,500 gallons of diesel from an 

aboveground storage tank at a farm to an irrigation canal that is a tributary of the Owyhee River 

near Nyssa, Oregon to the NRC (Exhibit 18). The spill occurred as a tanker truck was transferring 

fuel into an already nearly-full 10,000-gallon bulk storage tank. The spill was controlled by 

deploying a boom and pads to divert the flow of the irrigation canal. Information from the local 

chamber of commerce describes the farm as consisting of about I ,300 acres ofland, organized 

into four distinct areas. They mostly raise onions, but also some com, wheat, hay, and mint. The 

farm had a total oil storage capacity of 

16,000 gallons, of which the largest of three 

tanks was 10,000 gallons. All tanks were 

housed in buildings. The farm and trucking 

company involved in the discharge agreed to 

pay a penalty of$34,000 for the discharge. 

EPA noted that the spill could have been 

prevented had the farm had an SPCC Plan 

and provisions in place to ensure the safe 

storage of oil. Notably, the farm did not have 

adequate secondary containment to prevent 

the migration of the spilled oil some 200 feet 

from the tank. Further, the farm could not 

provide records indicating that the tank had 

been inspected, or that employees were 

Exhibit 18: Booms deployed to contain and collect 

diesel spilled by a farm in Oregon in February 2010. 

trained in how to prevent and respond to a spill.44 

Sources: EPA Pollution/Situation Report, available at http://cpaosc.orgisitc/site orofiJc.aspx?sitc id=2338 

Sources: EPA Pollution/Situation Report, available at http::·.'cpaosc.org/siteisite profile.asm:?site id=4844; 

http://www.epa.gov/region7/public _ notices/CW A/20 !!/brownfield_ oil_moberly _ mo _and _grisby _ fanns _elmer_ mo.htm 

Sources: EPA PoiJution/Situation Report, available at http://cpaosc.orgil;itcisitc profile.aspx'?sitc id=5847; NRC Report ID 

932146; http://\V\Y"W .argusobscrvcr.comtncws/nvssa-chamber-of-commcrcc-honors-loca1-rcsidcnts---larrv/aniclc l 0514 2 73-

~ltlf-5t6d-9J9U-29bc27t3 !624.html'?mo~.\lill; 

http://yosemite.epa.gov/opa/admpress.ns£'6427a6b7538955c585257359003fll230/9efe7b30cea0b3568525784e006df898!0p 

en Document 
116 


30329.109

45 

41 

48 

On July 14,2010, California Office of Emergency Services responded to a 2,000-gallon spill of 

diesel from a 1 0,000-gallon aboveground storage tank at an orchid nursery. The discharge 

affected a tributary to Frenchmans Creek. The spill had started about two weeks earlier (around 

June 30'h) when a pipe linking the tank to an abandoned boiler room was inadvertently perforated 

by a backhoe, causing diesel to discharge unnoticed into an adjacent small creek that is a tributary 

to Frenchmans Creek. Neighbors reported the spill to the state authorities on July 11 <h, after 

having observed diesel in Frenchmans Creek as early as July 8". Emergency response personnel, 

including San Mateo County and California Department of Fish and Game staff, contained the 

spill and did not observe any impacts to wildlife, although they reported over an inch of floating 

product over an emulsified layer in the small creek, immediately upstream of its confluence with 

Frenchmans Creek. The responsible party retained an environmental contractor to clean the spill 

under the County's supervision. The cleanup involved flushing the small creek and removing soil. 

The County later oversaw the removal of the facility's three 1 0,000-gallons aboveground tanks 

and their content. The responsible party agreed to pay $139,000 in civil penalties for violations 

stemming in part from the incident and as reimbursement of costs incurred by the county 

($5,700).45 

On January I, 20 II, a spill was reported to the NRC from a farm in Arkansas. The cause of the 

spill was operator error; the nozzle from a diesel tank was left outside of the secondary 

containment. Approximately 5,000 gallons of diesel were discharged, of which 4,000 gallons 

reached water.46 

On September 13,2012, possibly as much as 5,000 gallons (later estimated as potentially up to 

15,000 gallons) of used oil was discharged from an AST that leaked from a faulty valve at a plant 

nursery into the North Raccoon River in Iowa. Reportedly, some time on September 12 or 13, 

2012, the facility realized the tank was leaking but did not notify anyone or attempt to stop the 

leak because it was raining. According to personnel on the scene, the spilled material was heavy 

with some of it sinking and covering the stream bed. The sheen reportedly extended several miles 

downstream. 47 

On November 29,2012, approximately 7,000 gallons of Off-Road Diesel was released at a farm 

in Donalsonville, Georgia (Exhibit I 9). The EPA OSC in charge of the case noted the cause of the 

release as human error; a farmhand left the pump running while filling up a piece of equipment at 

the end of the day, but failed to remember to come back and turn off the pump!' 

Sources: ht!p:f/w\:vw.waicrboards.ca.vov!sanfnmci:-.cobav1board infb,·agc-m\av'20l0iAugn:..tT() Rcnort.pdt; 

http:i1w3 .calem".ca.gov!opemti_onal.'malhaz.ns L~eeb9c 70 I ac0il4688257ac600773 8.ld/27 45JS 799c4e5add8825 7761 0003b8 

31 '?Open Document; ill!!l1ililll£h&;mJLill!fur~~Jl!Qn!::>~m!l.:Jm:lll(lli±l:Jll~!ilm~_g;;.s::hli:£JlY!Illil!!)J;JJlill:: 

pollutio92 7 d l t'l!Ea. The company was also for diverting or obstructing a stream without prior authorization from the 

Department of Fish and Game and failing to immediately report the release of hazardous materials to the proper authorities, 

obtain a project pennit from CalOSHA., and protect employees in an excavation from cave-ins by an adequate protective 

system. 

Source: NRC report ID 963479 

Sources: EPA Pollution/Situation Report, available at http://epiwsc.org/site/site protile.aspx?~ite id=8173. 

Sources; EPA Pollution/Situation Report. available at http://epaosc.org/site/site profile.aspx?site id=8321; NRC report ID: 

1031830; Personal conununication with EPA OSC responsible for the case (Personal communication, 1/26/2015). 

WRRDA Farm Study I 31 
117 


30329.110

On March 4, 2012, a caller reported a spill of diesel fuel from a storage tank on a farm in 

Louisiana. The cause of the release was unknown but the discharge reached an irrigation ditch 

and affected an unnamed creek. The caller estimated the quantity released at several hundred 

gallons.49 

On December 28, 2012, a caller reported 

two spills to the NRC involving two tanks 

at a farm in North Carolina. One tank 

contained diesel (7,000 gallons spilled) 

and the other containing liquid nitrogen 

fertilizer (unknown amount spilled). The 

incident occurred when valves on the two 

tanks were opened, releasing the content 

onto the ground. Given the proximity of a 

wetland/swamp, cleanup actions were 

undertaken by the responsible party. 50 

On April 3, 2013, there was a release of 

fuel through the tank vent on a 5,000-

gallon double-walled storage tank at a 

farm in Alabama. The first report of the 

incident to the NRC attributed the cause of the release to operator error, 

through the tank vent and causing the discharge of approximately 200 gallons of diesel fuel. A 

second report to the NRC updated the quantity discharged to 4,800 gallons (which is almost the 

entire capacity of the tank) and the cause to over-pressurization which resulted in a pipe break. 51 

On January 27,2015, EPA received a report of a discharge from a farm irrigation fuel tank that 

released into the Salt Bayou in Arkansas. The spill was estimated to be less than I 00 gallons 

based on visual evaluation, but may have been several days old. 

Other incidents potentially relevant to characterizing the risk posed by oil discharges from farms include 

discharges from other types of facilities involving tanks of a similar size and service as those used on 

farms. Each year, the NRC receives hundreds of reports of discharges from storage tanks and fixed 

facilities. Unfortunately, the information provided in the NRC reports is generally not sufficiently detailed 

to ascertain the size of the container or circumstances of the release and conclude whether similar 

discharges may occur on farms. Additionally, as noted above, NRC reports often provide only 

preliminary information on the discharges to allow the prompt notification of authorities and deployment 

of cleanup resources, as needed. What the NRC data indicate, however, is that causes of discharges 

described above are fairly common across sources. For example, of the 1,690 incidents reported to the 

NRC between 2010 and 2013 involving the release of diesel from fixed facilities or storage tanks, 

28 percent were reportedly due to equipment failure, 16 percent were due to operator error, and 

25 percent were due to other causes (the remaining 31 percent had an unknown cause). 

Sources: NRC report ID I 004739 

Sources: NRC report lD I 034368 

Sources: NRC report IDs 1042818 and 1042879 
118 


30329.111

3.2 Environmental Impacts of Oil Discharges 

The impacts of oil discharges depend on the type of oil, quantities, spill circumstances (e.g., weather 

conditions, speed and effectiveness of the response) and ecosystem-specific characteristics (e.g., land, 

small stream, large river, pond, wetland). There is ample evidence that discharges of even relatively small 

quantities of fuel oil, such as the quantities commonly stored on farms, into waters or adjoining shorelines 

can have significant adverse impacts on soil, vegetation, and wildlife. For example, Exhibit 20 

summarizes selected cases that illustrate the type and the significant magnitude of natural damages 

assessed for fuel spills ranging between 2,000 and 30,000 gallons, which are within the range of farm fuel 

storage capacities." As shown by these cases and assessed natural resource damages ranging from 

thousands to millions of dollars, such spills can affect miles of rivers and acres of wetlands and terrestrial 

habitats, and cause significant injury to aquatic and terrestrial habitats and wildlife. In particular four of 

the seven cases involved discharges of less than 6,000 gallons, and therefore could occur at a farm storing 

up to 6,000 gallons of oil. The settlement values for damages from these four spills ranged from $145,000 

to $418,000. Such values are two orders of magnitude the costs that a farmer may incur to provide 

adequate secondary containment to prevent an oil discharge from reaching waters of the United States or 

adjoining shorelines, and an even greater multiplier of the relatively small costs of preparing an SPCC 

Plan.'3 

Spill volume, oil Summary of damages {from Department of 

type, and source Interior description of the case) Case Date 

···---------~"-----·----~-------·--

Pilot Diesel Spill, Bill 12/7/2000 6,000 gallons; Contaminated soils adjacent to the highway and 

Williams River National diesel. tanker truck overlooking the Bill Williams River just 300 feet 

Wildlife Refuge from the waters' edge, directly impacting soil, 

vegetation, and wildlife 

$145,000 

Texmo Oil Co. tanker 

truck accident diesel 

spill 

7/28/2006 7,600 to 7,800 

gallons; diesel fuel; 

tanker truck 

The spilled, burning diesel ignited the cattails in $1,217,383 

the marsh below the bridge and the fire 

eventually spread to include woody riparian and 

upland vegetation along the shoreline and the 

riparian forest upstream of the bridge. 

Approximately 348 acres of marsh and terrestrial 

habitats were burned or partially burned by the 

fire. 

East Walker River fuel 

oil spill 

12/30/2000 3,600 gallons; #6 

fuel oil; tanker truck 

The spill impacted at least 15 miles of river. The 

oil cleanup was complicated by cold weather and 

ice in the river. The resources impacted included 

lnstream habitat and wildlife {fish, 

macroinvertebrates); human recreational uses 

$418,000 

($358,000 

for NRDA) 

52 

(fishing); and other wildlife (1 Virginia rail, 2 

dippers, 1 mink, and 6 beavers collected dead}. 

EPA's case selection fOcused on fuel spills to land and reaching waters or adjoining shorelines. EPA excluded cases 

involving historical pollution (e.g., NPL sites), crude oil and other chemical substances, and vessels. 

In the 2008 RIA, EPA estimated that small facilities such as farms (Tier I qualified storage facility) spend $1,320 to 

$19.800 (2007 doJiars) on installing secondary containment for their bulk storage containers, depending on berm dimensions 

and material, and less than $200 on Plan preparation, when following the template EPA developed (U.S. EPA, 2008). 

WRRDA Farm Study i 33 
119 


30329.112

Exhibit 20: Exafl1_pl_e_nattJr_a~r~S~IJ!~<Iamages from fuel spills between 2,000 and 30,000 gallons 

Spill volume, oil Summary of damages (from Department of Settlement Case Date type, and source Interior description of the case) Value1 

Fish Creek 9/15/1993 30,000 gallons; Diesel was spilled into a crop field in OeKalb $2,507,500 

diesel; pipeline County Indiana. The fuel made its way into a 

small drainage ditch that discharges to Fish 

Creek. This oil entered Fish Creek and spread 

downstream, crossing into Williams County, 

Ohio, exposing the lower 7 miles of the creek to 

contamination. Mortality of mammals, migratory 

birds, fish, reptiles, amphibians, and mussels was 

observed from the spill plume area of Fish Creek 

following the discharge. 

Marathon Oil Co. jet 11/25/199, 3,000 gallons of jet The spills entered Oil Creek, Crooked Creek and $304,630 

fuel/kerosene and slop 2/15/1992 fuel I kerosene other Waters of the United States and the State 

oil spills (1990); 1,470 of Indiana. In total, approximately 9.24 miles of 

gallons of slop oil riverine habitat and 50 acres of wetland habitat 

(1992); facility were impacted. 

Farmland Industries oil 7/23/2001 2,000 gallons; oil; The discharged oil flowed into the unnamed Not 

discharge pipe intermittent creek bed and subsequently flowed available 

approximately 1,000 feet to Cedar Creek {an 

intermittent stream) and then flowed 

approximately 2 miles to Buck Creek (a perennial 

stream). The potential pathway of discharged oil, 

should it have continued downstream another 

2 miles from Buck Creek to Sand Creek (a 

perennial creek) and then another 5 to 6 miles 

into the Caney River, would have threatened this 

navigable-in-fact body of water. The USFWS 

calculated the actual extent of habitat affected 

by the discharge as approximately 15 miles of 

streams and adjacent banks along Cedar Creek, 

Puget Sound Energy- 11/3/2006 18,000 gallons, an Diesel fuel flowed to the ground and $49,614 

Crystal Mountain diesel undetermined groundwater, and an undetermined amount of 

spill fraction of while diesel fuel entered Silver Creek and flowed 

entered waters; towards the confluence with the White River, 

diesel; facility approximately four miles downstream. 

Source: U.S. Department of Interior NRDAR Case Documents, Available at b.ttQj}\y:.y~s:ert;,..u.Sg$,g~wjo(d$U;!Qrco.:./Da....c'1!.aRf~G?~...,'>.JlSPfl 

(accessed 1/14/2015) 1 Value shown is in the dollar year of the settlement date, not adjusted for inflation. 

EPA is aware of other examples of spills involving what may seem as small amounts of oil causing 

significant environmental damages. For example, in March I, 2015, the release of 1,500 to 2,200 gallons 

of used oil from an aboveground storage tank at a fonner farm (feedlot) in Washington State caused 

heavy oiling of Sulphur Creek and a sheen of the Yakima River downstream. The tank had no secondary 

containment. The oil left the facility, entered a ditch leading to Sulphur Creek and flowed through about 

seven miles of irrigation ditches and canals and about 12 miles down the Yakima River. Responders 

deployed absorbent pads, protective booms and collection equipment to contain and recover the oil. A 

final report on oiled wildlife noted that 22 oiled wild mallards were captured, of which 6 died in care, 

WRRDA Farm Study 1 34 
120 


30329.113

16 oiled mallards were observed already dead in the wild, and 57 oiled greylag domestic geese were 

captured, one of which had to be euthanized.54 

Spill (available at 

hti!l2'"'J;""'!i£i,il]cgg·rt!tQ!lJ:!llDl:Whilll£iskr!l~;iill.Rilll'iJ~ill'!lli accessed March 25, 2015) and Associated Press, 

March 3, 2015. 

WRRDA Farm Study i 35 
121 


30329.114

4 Conclusions 

The exact number of farms subject to the SPCC rule is uncertain, since EPA does not collect registration 

data for SPCC facilities, but fuel expenditure data compiled by USDA suggests that the vast majority of 

U.S. farms- 81 to 96 percent- store less than 2,500 gallons of oil on site, and only a very small fraction 

of farms less than about 1 percent store more than 20,000 gallons of oil. Based on capacity alone, 

therefore, the vast majority of fanns are already exempt from the SPCC requirements following the 

WRRDA amendments to the SPCC rule, which provided an exemption for farms with an aggregate 

aboveground oil storage capacity of less than 2,500 gallons. This is supported by review of tank 

registration data, site visits, and other information presented in this report (see Section 2). 

Further, a vast majority of the small subset of farms that are subject to the SPCC requirements are eligible 

to self-certify their plan. Over the last decade, EPA has promulgated several changes to the SPCC rule 

that specifically streamlined the rule requirements and provided significant regulatory flexibility and cost 

reductions for farms, including providing most farmers the option of using an EPA provided selfcertification template to develop their plan. The WRRDA amendments expanded the eligibility of the 

self-certification option to farms with an aggregate aboveground oil storage capacity up to 20,000 gallons 

(provided they also meet other criteria), further reducing the SPCC burden for the small fraction of fanns 

that must prepare a plan. Preparation of a self-certified SPCC Plan represents a small burden to a facility 

owner and is primarily aimed at ensuring that the oil containers are designed, installed, and operated to 

ensure safe storage of oil, including, at a minimum, by providing appropriate secondary containment to 

prevent spills from reaching the navigable waters or adjoining shorelines, regularly inspecting the tanks 

and appurtenances, and outlining procedures to be followed in the event of a spill. Moreover, the cost of 

developing an SPCC Plan is relatively small in comparison to the costs associated with spill cleanup and 

environmental damages (Section 3.2). 

Data on the characteristics of oil storage at farms (e.g., types of containers, container locations, and 

secondary containment) are limited. As stated in the regulatory record, EPA asked for data during notice 

and comment rulemaking related to farms to determine how farms differ from other facilities of similar 

storage capacities. EPA did not receive infonnation to justify exempting fanns or otherwise treating oil 

storage at fanns any differently than oil storage at other businesses with similar storage capacities. Data 

from the 2005 USDA survey discussed in Section 2.2 suggested that many fanners were not aware of 

their obligations under the SPCC regulation and did not provide adequate secondary containment of their 

oil containers. State regulations (Section 2.4) may not cover farm tanks, or when they do, they may focus 

on fire hazards rather than spill prevention and environmental protection. In fact, several states 

specifically refer tank owners to the SPCC rule at 40 CFR part 112 when describing required preventive 

measures applicable to facilities that store oil and have the potential to cause a discharge to navigable 

waters or adjoining shorelines. In fact, the storage threshold applicable to state AST programs often 

parallel those in 40 CFR part 112 with 25 states having aggregate aboveground oil storage capacity 

thresholds of I ,320 gallons or less. As discussed in Section 2.4, however, requirements applicable to these 

containers differ across the states, from simple registration of the containers with state agencies, to more 

extensive pollution prevention requirements that more closely follow those of the SPCC rule. 

The data reviewed by EPA show that farms arc sources of oil spills. EPA highlighted multiple examples 

of spills from farm tanks (Section 3.1), and there is ample evidence that discharges of oil- even in the 

relatively small quantities stored on fanns- cause significant damage to the environment (Section 3.2). 

Under the WRRDA amendments, the SPCC regulation currently provides an exemption for fanns with 

aggregate aboveground oil storage capacity less than 2,500 gallons, with an interim conditional 

exemption for farms with up to 6,000 gallons aggregate aboveground oil storage capacity. This is several 

WRRDA Farm Study 36 
122 


30329.115

orders of magnitude greater than the long-established criteria for discharges of oil that may be harmful, 

which were based on evidence of significant harm at concentrations in the range of parts per million. 

Given the number of farms with significant quantities of oil on-site, past discharges from farms, and 

environmental harm posed by even small discharges of oil, EPA maintains that requiring simple measures 

such as adequate containment, periodic inspection of containers, and regular review of oil handling 

practices, is an appropriate way to address the risk of spills to waters for farms storing even small 

quantities of oil, such as the 2,500-gallon minimum aggregate aboveground oil storage capacity provided 

for under the WRRDA. 

Review of the data led EPA in the past to conclude that oil storage on farms is not unique. As explained 

in the rulemaking record, EPA has received no data or found any rationale to treat fann-relaled oil storage 

differently than other sector oil storage. EPA has provided targeted rulemaking and guidance for farms 

and several compliance date extensions that reduced the SPCC burden for farms where appropriate. The 

new regulatory threshold established by the WRRDA, which exempts farms with less than 2,500 gallons 

in aggregate aboveground oil storage capacity, means that 81 percent to 96 percent of U.S. farms are not 

subject to the SPCC rule on the basis of aggregate aboveground oil storage capacity. The new selfcertification tiers established by the WRRDA amendments currently allow an estimated 99 to 99.9 

percent of the remaining fanns with aggregate aboveground oil storage capacities greater than 2,500 

gallons but less than 20,000 gallons to self-certify their SPCC Plan (assuming a clean history and no 

container greater than l 0,000 gallons). Additional farms may not be subject to the rule's requirements 

because they do not pose a reasonable expectation of discharge to waters of the United States or adjoining 

shorelines. 

For the few farms still subject to the SPCC rule, the cost and burden of developing an SPCC plan has 

been partially addressed with the regulatory streamlining efforts. EPA recognizes, however, that many 

farms (90 percent according to USDA data, as of2005) lack secondary containment required under the 

SPCC regulation and by state and/or local ordinances, and the cost of secondary containment may remain 

a concern for farmers. Containment is the simplest passive method of spill prevention and the cornerstone 

of the Federal spill prevention program. EPA believes that it is possible to provide effective containment 

at low cost, for example by placing the farm oil storage tanks in an earthen berm constructed using 

equipment typically found on a farm (which, in some instances, could require moving tanks), thereby 

addressing fanners concerns with complying with the SPCC rule. This change, when implemented in the 

context of a facility-specific spill prevention strategy contained in the SPCC Plan provides essential 

protection of the nation's waters. 

The WRRDA provides for EPA to study and address the appropriateness (based on a significant risk of 

discharge to water) of the interim conditional threshold, which currently exempts farms from the SPCC 

rule with aboveground storage capacity greater than 2,500 gallons and less than 6,000 gallons, provided 

they have a clean spill history. The study shows that it is appropriate to maintain its existing threshold of 

I ,320 gallons for all facilities in order to maintain adequate level of environmental protection of the 

nation's waters. This is consistent with the Agency's previous findings as discussed in the record 

supporting amendments to the SPCC regulation that provided relief to farmers and other small facilities. 

EPA realizes, however, that the WRRDA amendments create a new minimum regulatory threshold of 

2,500 gallons aggregate aboveground oil storage capacity specifically for farms. 

Given the information presented in this study, the agency's record and the lack of data to support any 

higher threshold, it is appropriate to set the threshold for farms at the minimum aggregate aboveground 

oil storage capacity of 2,500 gallons established under the WRRDA amendments. EPA maintains that 

requiring measures such as adequate containment, periodic inspection of containers, and regular review of 

WRRDA Farm Study i 37 
123 


30329.116

oil handling practices, is an appropriate way to address the risk of spills to waters for fanns within the 

2,500 to 6,000-gallon aggregate aboveground oil storage capacity range. 

WRRDA Farm Study i 38 
124 


30329.117

Appendix A: Relevant Text from the Water Resources Reform and 

Development Act (WRRDA) 

SEC. 1049. APPLICABILITY OF SPILL PREVENTION, CONTROL, AND COUNTERMEASURE 

RULE. 

(a) DEFINITIONS.- In this section: 

( 1) ADMINISTRATOR.- The term "Administrator'' means the Administrator of the Environmental 

Protection Agency. 

(2) FARM.- The term "farm" has the meaning given the term in section 112.2 of title 40, Code of 

Federal Regulations (or successor regulations). 

(3) GALLON.- The term "gallon" means a United States gallon. 

(4) OIL.- The term "oil" has the meaning given the term in section 112.2 of title 40, Code of Federal 

Regulations (or successor regulations). 

(5) OIL DISCHARGE.- The term "oil discharge" has the meaning given the term "discharge" in 

section 112.2 of title 40, Code of Federal Regulations (or successor regulations). 

(6) REPORTABLE OIL DISCHARGE HISTORY.-

(A) IN GENERAL.-Subject to subparagraph (B), the term "reportable oil discharge history" means a 

single oil discharge, as described in section ll2.l(b) of title 40, Code of Federal Regulations (including 

successor regulations), that exceeds 1,000 gallons or 2 oil discharges, as described in section ll2.1(b) of 

title 40, Code of Federal Regulations (including successor regulations), that each exceed 42 gallons within 

any 12-month period-

(i) in the 3 years prior to the certification date of the Spill Prevention, Control, and Countermeasure plan 

(as described in section 112.3 of title 40, Code of Federal Regulations (including successor regulations); 

or 

(ii) since becoming subject to part 112 of title 40, Code of Federal Regulations, if the facility has been in 

operation for less than 3 years. 

(B) EXCLUSIONS.-The term "reportable oil discharge history" does not include an oil discharge, as 

described in section ll2.l(b) of title 40, Code of Federal Regulations (including successor regulations), 

that is the result of a natural disaster, an act of war, or terrorism. 

(7) SPILL PREVENTION, CONTROL, AND COUNTERMEASURE RULE.-The term "Spill 

Prevention, Control, and Countermeasure rule" means the regulation, including amendments, 

promulgated by the Administrator under part 112 of title 40, Code of Federal Regulations (or successor 

regulations). 

(b) CERTIFICATJON.-In implementing the Spill Prevention, Control, and Countermeasure rule with 

respect to any farm, the Administrator shall-

(I) require certification by a professional engineer for a farm withWRRDA Farm Study: 39 
125 


30329.118

{A) an individual tank with an aboveground storage capacity greater than l 0,000 gallons; 

(B) an aggregate aboveground storage capacity greater than or equal to 20,000 gallons; or 

(C) a reportable oil discharge history; or 

(2) allow certification by the owner or operator of the farm (via self-certification) for a farm with-" 

(A) an aggregate aboveground storage capacity less than 20,000 gallons and greater than the lesser of--

(i) 6,000 gallons; and 

(ii) the adjustment quantity established under subsection {d)(2); and 

(B) no reportable oil discharge history; and 

(3) not require compliance with the rule by any farm-

(A) with an aggregate aboveground storage capacity greater than 2,500 gallons and less than the lesser 

of-

(i) 6,000 gallons; and 

(ii) the adjustment quantity established under subsection (d)(2); and 

(B) no reportable oil discharge history; and 

( 4) not require compliance with the rule by any farm with an aggregate aboveground storage capacity of 

less than 2,500 gallons. 

(c) CALCULATION OF AGGREGATE ABOVEGROUND STORAGE CAPACITY.-For purposes of 

subsection (b), the aggregate aboveground storage capacity of a farm excludes-

(I) all containers on separate parcels that have a capacity that is 1,000 gallons or less; and 

(2) all containers holding animal feed ingredients approved for use in livestock feed by the Commissioner 

ofF ood and Drugs. 

(d) STUDY.-

(!)IN GENERAL.-Not later than 1 year after the date of enactment of this Act, the Administrator, in 

consultation with the Secretary of Agriculture, shall conduct a study to determine the appropriate 

exemption under paragraphs (2) and (3) of subsection (b), which shall be not more than 6,000 gallons and 

not less than 2,500 gallons, based on a significant risk of discharge to water. 

(2) AD.IUSTMENT.-Notlater than 18 months after the date on which the study described in paragraph 

(I) is complete, the Administrator, in consultation with the Secretary of Agriculture, shall promulgate a 

rule to adjust the exemption levels described in paragraphs (2) and (3) of subsection (b) in accordance 

with the study. 

WRRDA Farm Study I 40 
126 


30329.119

Appendix B: EPA Fact Sheet- Farms and the Water Resources 

Reform and Development Act (WRRDA) 

(See next page] 

WRRDA Farm Study 42 
127 


30329.120

United States 

Environmental Protection 

Agency 

Office of Solid Waste 

and Emergency Response 

April 24, 2015 

www.epa.gov/emergencies 

Oil Spill Prevention, Control, and Countermeasures (SPCC Program): 

Farms and the Water Resources Reform and Development Act (WRRDA) 

This fact sheet explains impacts of the Water Resources Reform and Development Act (WRRDA) of 2014, as 

signed by the President on June 10, 2014, on the SPCC rule and farms. In addition, EPA anticipates revising 

the SPCC rule consistent with the WRRDA amendments through a future rulemaking. 

What is SPCC? 

The goal of the Spill Prevention, Control, and 

Countermeasure (SPCC) program is to prevent oil 

spills into waters of the United States and adjoining 

shorelines. A key element of this program calls for 

farmers and other oil storage and handling facilities to 

have an oil spill prevention plan, called an SPCC 

Plan. These Plans can help farmers prevent oil spills 

which can damage water resources needed for 

farming operations. 

What is considered a farm under SPCC? 

Under the SPCC rule, a farm is: "a facility on a tract of 

land devoted to the production of crops or raising of 

animals, including fish, which produced and sold, or 

normally would have produced and sold, $1,000 or 

more of agricultural products during a year." 

How does WRRDA affect SPCC for farms? 

Section 1049 of the Act changes certain applicability 

provisions of the SPCC rule for farms, and modifies 

the criteria under which a farmer may self-certify an 

SPCC Plan. 

Under WRRDA, a farm is not required to have an SPCC Plan If It has: 

An aggregate aboveground storage capacity less than 2,500 gallons 

OR r-----------------------, An aggregate aboveground storage capacity greater than 

2,500 gallons and less than 6,000* gallons: and 

No reportable discharge history. 

A farmer can self-certify the SPCC Plan if the farm has: 

An aggregate aboveground storage capacity greater than 

6,ooo· gallons but less than 20,000 gallons; 

No individual tank with a capacity greater than 10,000 

gallons: and 

No reportable discharge history. 

•This 6,000-gallon threshold may be adjusted by EPA, following a study 

to determine the appropriate exemption. 

What is •reportable discharge history'? 

WRRDA defines "reportable oil discharge 

history" as: a single oil discharge as 

described in section 112.1 (b) of the SPCC 

rule that exceeds 1 ,000 gallons, or 2 oil 

discharges. that each exceed 42 gallons 

within any 12-month period-

(i) in the 3 years prior to the certification 

date of the SPCC Plan (as described in 

section 112.3 of the SPCC rule); or 

(ii) since becoming subject to the SPCC 

rule (40 CFR part 112), if the facility has 

been in operation for less than 3 years. 

A farmer must have a licensed Professional Engineer {PE) certify the SPCC Plan if the farm has: 

An individual tank with an aboveground storage capacity greater than 10,000 gallons; OR 

An aggregate aboveground storage capacity greater than or equal to 20,000 gallons; OR 

A reportable discharge history. 

Of!Vme 'liff, !EIJrll!lrgency Management WRRDA Fann Study/j'pgt93j 1 
128 


30329.121

SPCC: Farms and the Water Resources Reform and Development Act April24, 2015 

Will these thresholds change in the future? 

WRRDA provides for EPA to work with USDA to conduct a study to determine the appropriate applicability 

threshold for farms, based on a significant risk of discharge to water. The threshold quantity must be not more 

than 6,000 gallons and not less than 2,500 gallons. The study is scheduled to be completed by June 2015. EPA 

will then promulgate a rule amending the SPCC requirements to adjust the applicability thresholds. 

Under WRRDA, how do I determine what certification is required for my farm's SPCC Plan? 

If your farm is subject to the SPCC rule (see the "Is my farm covered by SPCC?" text box on the previous page for 

applicability criteria): 

1. Calculate your aggregate aboveground oil storage capacity: 

Do !lQl count: 

All containers on separate parcels that have a capacity that is 1,000 gallons or less; 

Containers storing heating oil used solely at a single-family residence (e.g., your personal residence as 

the farm owner or operator); 

Pesticide application equipment or related mix containers (with adjuvant oil); 

Any milk and milk product container and associated piping and appurtenance; 

Completely buried oil tanks (underground storage tanks or USTs) and associated piping and equipment 

that are subject to all of the technical requirements under EPA's underground storage tank regulations 

at40 CFR part 280 or 281; 

Containers holding animal feed ingredients approved for use in livestock feed by the Commissioner of 

the Food and Drug Administration (FDA). 

2. Review your reportable discharge history. (See the "What is 'reportable discharge history'?" text box on the 

previous page) 

3. Use the following flowchart to determine what kind of certification is needed for your farm's SPCC Plan. 

Office of Emergency Management 

June 30, 2015 

Page 12 WRRDA Farm Study I pg 44 
129 


30329.122

SPCC: Farms and the Water Resources Reform and Development Act 

Revised secc Guidanc;e for ~eg(~n;,r'tiJsp~~tO/'S{ . . . ... ·· f'lttp:llwww..epa,,gov/!3mergencie~lc<mtef)!/~cctspcc_guldai:t9~;htm 

April 24, 2015 

EPA's SPed for Aqriculttlrewe~pa,ge;. , .·.. . . ·. ··• ··•' ht1P;IIWWW..ep11:9<JV/emerge~<;leslcpnt~n~~pcctspcc":~g.~tll'\ < . • .: . . •. 

~l\llthe ;;l!l)t!I'(Un<l; TRI, EPCRAcRMP, a(ld()ll.ltlfl)rmatlon¢~nten (800)424~~3,46·<Jf(7QS)~t:i~~~1o TDp(apo}5l?3,7872or(70$)412cjs2~ ••·•····• ·.·.· .• •· .. ··· ·•·. , •• . · http:!lwww.2.epa.gov/epcralsupa!fuM-trHlpcra-fll'lp-OiHnrormatl<ln-center 

Office of Emergency Management 

June 30, 2015 

Page 13 WRRDA Farm Study I pg 45 
130 


30329.123

~~~~enliXl m: St~mmar~; of Sfate BguJ.alions ani Srlgttams !for ~~~ ' 

Storage on larms • ' · · · · ' · ·, 

Arkansas 

Colorado 

Kentucky 

Minnesota 

New Mexico 

June 30, 

Regulation No. 12; Storage Tanks; June 27, 2014 generally requires that ASTs be inspected and registered 

under the state program but farm tanks are exempt. 

"Reg.12.201 Registrotion Requirement (C} The provisions of this Regulation shall not apply to 

aboveground storage tanks located on farms, the contents of which are used for agricultural purposes 

and not held jar resole." 

Arkansas pollution Control and Ecology Commission 

(https:ljwww.adeq.state.ar.us/regs/files/reg12 final 20140714.pdf) 

Storage Tank Regulations at 7 C.C.R. 1101-14 generally apply to tanks greater than 660 gallons capacity 

and less than 40,000 gallons. Regulations require permits, registration and facility inspection. 

The regulation specifically exempts 1

'farm and residential tanks or tanks used for horticultural or 

floricultural operations" where farm tanks are defined as "tank located on a tract of land devoted to the 

production of crops or raising animals, including fish, and associated residences and improvements. A 

farm tank must be located on the farm property. "Farm" includes fish hatcheries, rangeland and 

nurseries with growing operations." 

Department of Labor & Employment; Dillnspection Section 

(https:/ /www.colorado.gov/pacific/sites/default/files/PetroleumRegulationsl01514.pdf) 

In accordance with 815 KAR 7:120(3}(7}(i), a permit must be obtained for the installation or repair of an 

aboveground, or underground storage tank of flammables, combustible liquids, or gases. Tanks in excess 

of 25 gallons inside of a building & excess of 100 gallons outside a building for Class lA, IB, IC, II & lilA 

liquids require a permit. 

However, farm tanks are generally exempt from permit requirements: "ln accordance with the 

Kentucky Building Code, tanks for the use on farms located which are incidental to the operation of farm 

and located outside the boundary of a municipality but only if they are not used in the business of retail 

trade, as a regular place of work for 10 or more people or for the processing or storage of timber 

products." 

State Fire Marshal's Office 

(http:/ /dhbc.ky.gov/sfm/lnformationai%20Bulletins/Bulletin%20August%202011 %20Permit%20Fees%20 

Permit%20Requirements%20Aboveground%20and%20Underground%20Storage%20Tanks%20%20AGST 

%20%20UGST%20permit.pdf) 

store that may pollute the waters of the state are regulated by Minnesota 

Rules, Chapter 7151: Aboveground Storage of liquid Substances. 

(https://www,revisor.mn.gov/rules/?id-7151&version-·2014-01-18T09:33:03-06:QQ..&1Q!JI1at=pdf) 

Farm tanks are exempt: 

"Subp.2. Exclusions. The following aboveground storage tank systems are excluded from the 

requirements of this chapter ... K. an aboveground storage tank, located on a farm, in which the contents 

of the tank are used by the tank owner or operator for farming purposes, and the contents are not being 

commercially distributed" 

Minnesota Pollution Control Agency 

New Mexico Petroleum Storage Tank Regulations (20.5 NMAC) apply toASTs that are 1,320 gallons or 

more, and less than 55,000 gallons. The general requirements include registration, design, construction 

and installation standards, release detection, record~keeping and financial responsibility. 

ASTs as defined in the regulation specifically excludes: (a) farm, ranch or residential tank used for 

storing motor fuel for noncommercial purposes; 

Department of Environment 

WRRDA Farm Study I 42 
131 


30329.124

Vermont 

Wyoming 

Alabama 

Delaware 

Kansas 

or residential that store motor fuel for noncommercial purposes are exempt from all 

AST regulations under Codified law of South Dakota, chapter 34A~2-100. 

Department of Environment and Natural Resources (http://denr.sd.gov/des/gw/tanks/ ASTbrochure.pdf) 

ASTs are regulated under 10 V.S.A. Chapter 59 Section 1929a and 10 V.S.A. Chapter 159. 

The regulation establishes general requirements for ASTs. The requirements include siting, design and 

installation standards. Additional requirements apply toASTs at bulk facilities (i.e., facilities that store 

fuel for sale or distribution) and to fuel suppliers. While farms are not explicitly exempted from the rule, 

the definition of bulk storage tank facility does not cover farms since they do not further distribute or 

sell fuel. 

Agency of Natural Resources (http:/ /www.anr.state.vt.us/dec/wastediv/ust/regs/ ASTRules.pdf) 

State requires registering ASTs fuels. 

There is no state program for other types of ASTs, but the state presumably applies requirements under 

the adopted state fire code (IFC). 

State Fire Marshal's Office 

State notification program. Each facility with an AST is required to complete a form with information on 

location, tank capacity, substance and usage. For owners of ASTs to be eligible to the Trust Fund, they 

must register their tanks, comply with state ADEM Admin. Coders. 335-6-6-.03 and 335-6-6-.12(r) and 

Code of Federal Regulations (CFR) Title 40 Part 112 (40 CFR 112), and maintain financial responsibility. 

The definition of ASTin the regulation specifically excludes "Farm or residential tank of 1,100 gallons or 

less capacity used for storing "motor fuel" for noncommercial purposes." 

Department of Environmental Management 

(http://www .adem.state.al. us/aiEnviroReglaws/files/Division6Vol2.pdf) 

Delaware Administrative Code, Title 7/1000/1300 Section 1352: Aboveground Storage Tanks. 

All ASTs greater than 250 gallons must register, except farm tanks less than 1,100 gallons. Additional 

requirements may apply depending on tank size: 

Signage (ASTs greater than 1,100 gallons) 

Secondary containment 

Fees (ASTs greater than 12,500 gallons) 

Other technical requirements inspection, monitoring, release detection, prevention and 

corrective action (ASTs greater than 40,000 gallons). 

Department of Natural Resources and Environmental Control, Division of Air and Waste Management 

(http:/ I regulations.delaware.gov/ AdminCode/title 7 /1000/1300/1352.shtmi#T opOfPage) 

FAC 62-762: Storage Tank Systems 

ASTs with greater than 550 gallons capacity storing petroleum products and hazardous substances are 

regulated and required to have inspections and secondary containment 

Department of Environmental Protection 

Permanent Administrative Regulations, Article 44- Aboveground Storage Tanks 

State regulations for tanks 660 gallons or greater of capacity or 1,100 gallons capacity at farms or 

residences used for non·commercial purposes. Owners of tanks below the threshold may register their 

tank if they desire, but no permit or fee are needed. 

Other tanks are subject to requirements that include: 

WRRDA Farm Study I pg 43 
132 


30329.125

Table A·1· Summary of State Regulations and Programs for Oil Storage on Farms 

State AST Regulation and Applicable Requirements 

. Registration and AST permit 

. Siting 

. Secondary containment (110 percent of largest tank volume) 

Department of Health and Environment {http://www.kdheks.gov/tanks/download/ast_overview.pdf) 

louisiana LAC Title 33 Chapter 9 establishes requirements for contingency planning and implementation of 

operating procedures and best management practices to prevent and control the discharge of pollutants 

resulting from spill events. 

The requirements apply to facilities with minimum aboveground storage capacity of 1,320 U.S. gallons 

for two or more individual containers in aggregate within a common storage area (counting only 

containers with a capacity of 55 gallons or greater), or 660 u.s. gallons for an individual container. 

The requirements for the plan are very similar to those contained in 40 CFR part 112. 

Department of Environmental Quality 

Maryland Regulations at CO MAR 26.10.01, Oil Pollution and Tank Management requires that facilities with 

aboveground oil storage capacities of 10,000 gallons or more obtain oil operations permits issued by the 

Oil Control Program. All regulated ASTs are required to have secondary containment, such as dikes. 

Facilities with less than 10,000 gallons or more of oil capacity are permitted by right under a general oil 

operations permit, provided that they meet the general requirements in other sections of the regulations 

{which pertain primarily to USTs). 

Department of Environment 

(http://www .dsd .state.md. us/comar /subtitle_ chapters/26 _ Chapters.aspx#SubtitlelO) 

New Hampshire NH's Aboveground Storage Tank Program (Env*Or 300) is designed to prevent releases of oil from 

aboveground Petroleum Storage Tanks (ASTs) in New Hampshire. Petroleum ASTs are regulated by both 

the Department of Environmental Services {DES) and the New Hampshire Fire Marshal's Office. 

The rules apply to facilities with a single AST system having a capacity greater than 660 gallons or 

facilities with two or more ASTs that have a total storage capacity greater than 1,320 gallons. 

Requirements include registration, construction standards, release detection and prevention, secondary 

containment, and SPCC Plan (certified by PE licensed in NH). 

Department of Environmental Services and State Fire Marshal's Office 

New Jersey N.J.A.C. 7:1E- Discharges of Petroleum and Other Hazardous Substances Rules sets requirements for 

"major facilities", which include facilities with 200,000 gallons or more of hazardous substances 

(including petroleum) in total aggregate oil storage capacity; the threshold is 20,000 gallons for nonpetroleum hazardous substances. 

The rule includes design, installation (including facility drainage and secondary containment), operation 

(including inspection, training, security, integrity testing, etc.), and planning requirements. 

Department of Environmental Protection 

New York Article 17, Title 10 of the Environmental Conservation law, entitled "Control of the Bulk Storage of 

Petroleum" applies both to USTs and ASTs, or groupings of such tanks with a combined storage capacity 

of more than 1,100 gallons. 

The regulations includes: 

. Tank registration (every five years) 

. Notification for modifications 

. Use of color coding of fill ports, shutoff valves, gauges and check valves . 

. Secondary containment (i.e., berms or other devices to contain spills) . 

. Monthly visual inspections . 

. Every 10 years, clean out tanks that are resting on grade, remove the sludge from the bottom, 

inspect for structural integrity and test for tightness. 

. New ASTs must be constructed of steel. If their bottom rests on the ground, the tank must 

have cathodic protection. An impermeable barrier must be installed under the tank bottom, 

with monitoring between the barrier and the bottom. 

Additional requirements apply to "major oil storage facilities" with storage capacity of 400,000 gallons or 

44 
133 


30329.126

Table A-1· Summary of State Regulations and Programs for Oil Storage on Farms 

State AST Regulation and Applicable Requirements 

more under New York's Oil Spill Prevention, Control and Compensation Act" (Article 12 of the Navigation 

Law). These facilities must: Obtain an operating license from DEC; Pay a license fee of up to 12 1/4 cents 

per barrel of throughput at the facility; Submit data to DEC on operating activities, such as average daily 

throughput and storage capacity; Implement a spill prevention (SPCC) plan; Comply with license 

conditions and State petroleum bulk storage regulations, 6NYCRR Parts 613 and 614; and Report 

discharges to DEC. 

Department of Environmental Conservation (http:/ /www.dec.ny.gov/chemical/2642.html) 

North Carolina NC Department of Environment and Natural Resources (DENR) only regulates ASTs if they meet the 

definition of an oil terminal facility, Le., capable of being used for the purpose of transferring, 

transporting, storing, processing, or refining oil; have 21,000 gallons or higher in storage capacity; and 

not a retail gasoline dispensing operation serving the motoring public. Oil terminal facilities must register 

with the NC DENR within 30 days of beginning of operations, and include site plan and description of 

procedures for the prevention of oil spills. 

ASTs are also covered by the North Carolina Fire Code (follows NFPA Standard 30 and 30A), administered 

by the Office of State Fire Marshal. There is no state~ wide AST registration or permitting. More specific 

requirements may be in place at the local and/or county levels. 

Department of Environment and Natural Resources (http:/ /portal.ncdenr.org/web/wm/ust/otfmain); 

Office of State Fire Marshal 

Pennsylvania The Storage Tank and Spill Prevention Act of Jul. 6, 1989 (P.L. 169, No. 32) applies to systems with 

storage greater than 250 gallons. The requirements include tank registration, permitting, inspections 

(tanks >5,000 gallons) and establishment of technical, operational and closure standards for ASTs and for 

reporting releases. A state certified tank handler must perform work on these tanks and inspections 

must be by a certified inspector. 

The regulatory definition of aboveground storage tank specifically exempts "{12} A tank of 1,100 gallons 

or less in capacity located on a farm used solely to store or contain substances that are used to facilitate 

the production of crops, livestock and livestock products on such farm." 

Department of Environmental Protection, Bureau of Environmental Cleanup and Brownfields, Division of 

Storage Tanks 

(http:/ /files.dep.state.pa .us/EnvironmentaiCieanupBrownfields/Storage Tanks/StorageTanksPortaiFiles/a 

ct32of1989.pdf) 

Rhode Island Registration is required for AST(s) with a single or combined capacity of 500 gallons or greater {owners of 

ASTs with a combined capacity of less than 500 gallons are exempt). 

The regulation establishes requirements for AST facilities with a combined storage capacity over 500 

gallons, including 

. Overfill protection 

. Secondary containment to contain 110 percent of the tank volume . 

. Inspections. The owner/operator must inspect the facility at least monthly. Additionally, if the 

tank is 10,000 gallons or more, the owner must conduct a detailed inspection within 10 years 

of the tank installation {with some exceptions for tanks meeting specified criteria). 

Department of Environmental Management 

(http:/ /www.dem.ri.gov /pubs/regs/regs/compinsp/oilpollu.pdf) 

Texas Regulated ASTs include those which have a capacity of more than 1,100 gallons and which store a 

petroleum substance capable of being used as a motor fuel. Requires registration of regulated tanks as 

well as notification of changes in operational status, product stored, and ownership. 

Texas Commission on Environmental Quality 

(http://www .tceq. texas.gov /permitting/registration/pst/ Am_t_Regulated .html) 

Virginia The State Water Control Board in adopted 9 VAC 25~91~10 et seq. in 1998, which consolidated three 

previous regulations {i) Oil Discharge Contingency Plans and Administrative Fees for Approval, 9 VAC 25-

90~10 et seq. {VR 680~14~07), {ii) Facility and Aboveground Storage Tank Registration Requirements, 9 

VAC 25-130-10 et seq. (VR 680-14-12), and (iii) Aboveground Storage Tanks Pollution Prevention 

Requirements, 9 VAC 25~140~10 et seq. (VR 680~14~13), relating to facilities and ASTs located in the 

Commonwealth that have an aboveground storage capacity of 25,000 gallons or more of oil into a single 

WRRDA Farm Study I pg 45 
134 


30329.127

West Virginia 

Alaska 

The requirements under the Chapter do not apply to ... (3) an AST with a storage capacity of 660 gallons 

or less of oil; or (20) an AST located on a farm or residence used for storing motor fuel for 

noncommercial purposes with an aggregate oil storage capacity of 1,100 gallons or less. 

The regulation establishes requirements for the registration, notification, and closure of ASTs for owners 

of facilities with aggregate aboveground storage capacity of more than 1,320 gallons of oil or an operator 

of an individual AST located within the Commonwealth with a storage capacity of more than 660 gallons 

of oil. 

It also establishes pollution prevention standards and procedures (e.g., inventory control, inspections, 

secondary containment, cathodic protection, training, leak detection, etc.) for tanks meeting specified 

criteria. 

Any operator of a regulated AST facility having an aggregate oil storage capacity of 25,000 gallons or a 

tank storage capacity of 15,000 gallons must also have an Oil Discharge Contingency Plan, including 

inspections, testing, overfill protection equipment and secondary containment, as well as demonstrate 

financial responsibility. 

Department of Environmental Quality 

(http://www.deq.state.va.us/Portals/O/DEQ/land/Tanks/astfin.pdf) 

Senate Bill373, containing the Aboveground Storage Tank Act §22~30 and the Public Water Supply 

Protection Act §22~31 was signed into law on April!, 2014. The law officially took effect on June 6, 2014. 

The bill requires an inventory and registration of aboveground storage tanks. The bill also requires 

development of a variety of aboveground storage tank regulations for consideration in the 2015 

Legislative session. 

The rule applies to owners/operators of ASTs with a storage capacity of more than 1,320 gallons, 

including mobile tanks that stay at the same location or 60 or more days. The rule sets minimum design, 

construction, inspection, secondary containment, leak reporting and performance standards. It also 

requires registration (including payment of fee) 

Effective November 20, 2014, owners of tanks meeting specified criteria for risk levels must submit a spill 

prevention response plan {SPRP) and annual inspection certification. 

Levell ASTs are those that, among various criteria, have a capacity of 50,000 gallons or more. level 3 

ASTs pose low risk {e.g., contain water or food grade material or are empty}. Level 2 ASTs do not meet 

the Levell or Level 3 criteria. Thus, level 2 ASTs may be inspected by the owner or operator whereas 

Levell ASTs must be inspected by a PE or certified inspector. 

Department of Environmental Protection 

(http://www .dep. wv.gov /WWE/abovegroundstoragetanks/Pages/ default.aspx) 

Wisconsin Administrative Code Comm 10 regulates all aboveground storage tanks (ASTs) 110 gallon 

capacity and larger storing liquids that are classified as flammable, combustible and/or hazardous 

chemica!. Regulated tanks must have approval of construction plan, registration, permitting, inspections 

and fees. Streamlined requirements apply to certain farm tanks. For example, the code provides some 

measures to accommodate the installation of aboveground tanks less than 1,100 gallon capacity on 

farms via an expedited plan submittal and sign-off. 

Department of Commerce 

Aboveground storage tanks and facilities with an effective storage capacity under 1,320 gallons 

are regulated by the State Fire Marshal and/or local Fire Marshal. 

Tanks with storage capacity between 1,320 gallons and 420,000 gallons (including a collection 

of 55 gallon drums that add up to 1,320 gallons) are regulated by the Environmental Protection 

Agency and the State Fire MarshaL 

Aboveground storage tank facilities with an effective storage capacity of 420,000 gallons 

(10,000 barrels) or greater of refined petroleum product or over 210,000 gallons of crude oil 

are under the Alaska 

WRRDA Farm Study I 46 
135 


30329.128

Table A-1· Summary of State Regulations and Programs for Oil Storage on Farms 

State AST Regulation and Applicable Requirements 

Administrative Code, Title 18, Chapter 75. Oil and Hazardous Substances Pollution Control. 

State Fire Marshal's Office (for smaller facilities); Alaska Department of Environmental Conservation {for 

larger facilities} 

Arizona ASTs must be registered with the State Fire Marshal. Application must include site plans. 

State Fire Marshal's office. 

California CAL FIRE·Office of the State Fire Marshall administers the Aboveground Petroleum Storage Act (APSA) 

element of the Unified Program (Health and Safety Code, Chapter 6.67. Aboveground Storage of 

Petroleum [25270- 25270.13]. 

APSA regulates facilities with aggregate aboveground petroleum storage capacities of 1,320 gallons or 

more, which include aboveground storage containers or tanks with petroleum storage capacities of 55 

gallons or greater. These facilities typically include large petroleum tank facilities, aboveground fuel tank 

stations and vehicle repair shops with aboveground petroleum storage tanks. The Act does not regulate 

non~petroleum products. 

Facilities with total petroleum storage quantities at or above 10,000 gallons are inspected at least once 

every three years by a Unified Program Agency and have reporting and fee requirements, while facilities 

with petroleum storage quantities equal to or greater than 1,320 gallons but less than 10.000 gallons 

have reporting and fee requirements only. All regulated facilities must meet the federal SPCC rule 

requirements. 

CAL FIRE-Office ofthe State Fire Marshall (http://osfm.fire.ca.gov/cupa/apsa.php; 

http:/ /leginfo.legislature.ca.gov/faces/codes_displayT ext.xhtml?lawCode=HSC&division=20.&title=&part 

=&chapter=6.67.&article=) 

Illinois State program regulates all new tanks over 110 gallons that store flammable substances. Requires 

permits and registration for new ASTs, with secondary containment and site plans. 

Dispensing tanks are limited to 2,500 gallons in capacity each {except for mining facilities and coal-fired 

electric generating facilities) and any one facility is limited to two dispensing storage tanks. 

Farms are limited to four dispensing storage tanks of 2,500 gallons each, not exceeding 5,000 gallons 

per type of fuel. 

The regulations specify requirements for dispensing tanks, including vents, locks on permanently 

connected pumping devices, labeling, siting. 

Office of the State Fire Marshal, Division of Technical Services 

!http://www .ilga .gov /commission/jcar /admincode/041/041001800000200R.html) 

Indiana ASTs are regulated by the Indiana Fire Prevention Code (675 lAC 22-2.3; following IFC) with specifies the 

design, installation and permitting requirements. 

Department of Homeland Security 

Iowa State registration program requires tanks with greater than 1,100 gallons capacity to register and to 

receive approval of their plan prior to being placed in service. 

State Fire Marshal's Office (http://coolice.legls.iowa.gov/coolice/default.asp?category=billinfo&service=iowacode&ga=83&input=101) 

Georgia ASTs are regulated under Chapter 120~3-11: Flammable and Combustible liquids. 

Storage tanks having a liquid capacity that exceed 60 gallons are covered. Plans for storage installations 

must be submitted for review by the State Fire Marshal; however, plans for tank installations with a 

storage capacity of 660 gallons or less may be submitted to the local fire authority, where one exists. 

Georgia Safety Fire Commissioner 

Maine All ASTs greater than 60 gallons must be registered with the State Fire Marshal"s Office under Title 25, M. 

R. S. A. §2482. The law stipulates registration, siting, containment and other requirements: 

. The state requires that plans to be submitted with the permit application for a facility with a 

total aggregate capacity greater than 1,320 gallons must be certified by a professional 

engineer. 

. Secondary Containment must be provided for every tank. (NFPA 30-2003. 4.3.2.3). Secondary 

Containment may be a liquid tight dike with a capacity of 110% of the largest tank in the dike 

(NFPA 30-2003. 4.3.2.3.2). A "Secondary Containment" commonly called a "double wall" tank 

WRRDA Farm Study I pg 47 
136 


30329.129

Table A-1: Summary of State Regulations and Programs for Oil Storage on Farms 

State 

Massachusetts 

Michigan 

Missouri 

Montana 

AST Regulation and Applicable Requirements 

not more than 12,000 gallons nominal capacity (NFPA 30-2003, 4.3.2.3.3) meets this 

requirement. 

Facilities with an aggregate capacity of greater than 1,320 gallons must comply with the 

Federal Environmental Protection Agency Spill Prevention Control & Countermeasures Plan 

requirements. (40 CFR 112) 

State Fire Marshal's Office: b.!irLLJwww.m<lif1_g,g_Q_:ddps/fmo/p!ans/storage tanks.ht.ml 

New motor fuel ASTs with underground piping must be registered with the State Bureau of Remediation 

& Waste Management, Tank Registration Section, 

Department of Environmental Protection: 

http://www .maine.gov/depjwaste/abovegroundtanks/onsitemotorfuel.html 

Notification, registration and permitting are required for all tanks less than 10,000 gallons capacity under 

527 CMR 9.00 (Tanks and Containers}. Tanks are subject to annual inspections by the local Flre 

Department. 

Separate, more stringent requirements apply to tanks greater than 10,000 gallons under 502 CMR 5.00 

(Permit and Inspection Requirements of Aboveground Storage Tanks of More than Ten Thousand Gallons 

Capacity). 

Farm ASTs are exempt from permitting if less than 1,100 gallons capacity and used for storing motor 

fuel for noncommercial purposes. 

State Fire Marshal's Office 

Michigan regulates the fees, plan reviews and registration of aboveground storage tanks {ASTs) under 

the Michigan Fire Prevention Code and Storage and Handling of Flammable and Combustible Liquids 

(Fl/Cl) Rules. 

Tank systems with storage tank capacity of 1,100 gallons or less must comply with the Fl/Cl Rules, but 

do not need a plan review, and are not inspected or certified by the Storage Tank Division. Approval by 

the local authority having jurisdiction (fire marshal, fire chief) is required. 

Motor vehicle fueling at farms, isolated construction projects, and rural areas has specific siting and 

operating requirements. The separation distances from the tank system, including the vehicle being 

fueled, to any building must be not less than 40 feet and the separation distances to property lines must 

be not less than 25 feet. The dispensing area, which is usually adjacent to the storage tank system, is 

required to be protected to prevent spills from entering the groundwater, surface water, or subsurface 

soils. Only three tanks are allowed at each site and a 100 feet separation distance must be provided 

between sites at the same property. 

A permit is required for ASTs containing flammable and combustible liquids or heating oil for 

consumptive use and with a capacity greater than 1,100 gallons. 

Farm storage tank systems that exceed 1,100 gallons in capacity are regulated under the same 

requirements as private motor vehicle fueling locations. Private motor vehicle-fueling storage tank 

systems are limited in capacity: 

Tanks holding Class I liquids are limited to 6,000 gallons; 

Tank systems holding Class II or lilA liquids are limited to individual capacity of 15,000 gallons 

or 30,000 gallons in the aggregate. 

Department of licensing and Regulatory Affairs, Storage Tank Division 

Safety inspections on ASTs are performed by the Department of Agriculture, Weights and Measures 

Division. 

Facilities must meet the Fire Code. 

Facilities with an aggregate capacity of 2,000 gallons or less in the secondary containment are deferred 

from the financial responsibility requirements, but must still comply with all other requirements of 2 CSR 

90-30. 

Department of Agriculture, Weights and Measures Division 

(http://www .moga.mo.gov/mostatutes/cha pters/chapText414.html) 

ASTs are covered under the Fire Code (Administrative Rules of Montana 17 .58.326L which follows the 

Uniform Fire Code. 

WRRDA Farm Study) 48 
137 


30329.130

Table A-1: Summary of State Regulations and Programs for Oil Storage on Farms 

State 

Nebraska 

Nevada 

North Dakota 

Ohio 

Oregon 

South Carolina 

Washington 

AST Regulation and Applicable Requirements 

Additionally, ASTs may also be covered by the Petroleum Tank Release Cleanup Fund provided that they 

meet minimum design, construction, and installation standards specified in 17.57.102. To be eligible for 

the Fund, ASTs must be double~wa!led and have maximum storage capacities of less than 30,000 gallons. 

Tank owners or operators wanting to avail themselves of the Fund coverage may voluntarily register 

their tanks with the Montana Petroleum Tank Release Compensation Board. 

Montana Petroleum Tank Release Compensation Board (http:/ /deq.mt.gov/pet/default.mcp)() 

ASTs are regulated under Title 153, Chapter 17. Installation and replacement of ASTs require a permit 

from the State Fire MarshaL Installations must be in accordance with NFPA codes. 

State Fire Marshal's Office 

Storage tanks are subject to State Fire Marshal regulations. Nevada Administrative Code 477.323 states 

"A person shall not store a hazardous material in excess of the amount set forth in the International Fire 

Code, 2006 Edition as adopted pursuant to NAC 477.281, unless he has been issued an operational 

permit by the State Fire Marshal to store that material." A hazardous materials permit must be renewed 

annually through the Department of Public Safety, State Fire Marshal's Division (SFM). Higher thresholds 

are set for retail gas stations that store fuels (gasoline and diesel) in USTs in compliance with UST 

regulations. 

State Fire Marshal (http:/ /fire.nv.gov/bureaus/FPL/Hazmat_Reporting/) 

The Nevada Division of Environmental Protection does not regulate most AST systems, with the 

exception of AST systems located at or near a body of water and used to provide fuel to water vessels 

(Le., marina storage tanks). For these tanks, the DEP registration program applies to tanks greater than 

110 gallons but no more than 12,000 gallons capacity. 

Division of Environmental Protection (httn:/lwww.leg.state.nv.us/nac/NAC-459.htmi#NAC459Sec9921) 

Approval of State Fire Marshal for fuel dispensing storage tanks only, according to Ul142 and NFPA 

guidelines. 

To be eligible for the North Dakota Petroleum Tank Release Compensation Fund, farm and ranch 

underground tanks greater than 1,100 gallons must be registered. Underground tanks less than 1,100 

gallons and all aboveground tanks are excluded if they are used for non-commercial purposes. However, 

farmers and ranchers can voluntarily join the Fund upon application and payment of fees for excluded 

tanks. 

State Fire Marshal's Office 

Permits for ASTs holding flammable liquids, including diagram and accordance with Ohio Fire Code and 

NFPA 30/30A. Tank owners must submit application to the State Fire Marshal at installation, removal, 

alteration, temporary closure and abandonment. 

State Fire Marshal's Office 

DEQ only regulates the operation of facilities with ASTs of 10,000 gallon or greater capacity if petroleum 

is received from pipelines or vessels. 

Other tanks are subject to requirements of the Office of State Fire Marshall. Permits are required for 

tanks greater than 1,000 gallons holding flammable and combustible liquids. 

Office of State Fire Marshall 

The State Fire Marshal administers the AST program, in accordance with NFPA 30 and 30A. Owners must 

register the tanks with the Fire Marshal Office for review. 

Office of State Fire Marshall 

All ASTs in Washington used to store flammable or combustible materials are subject to the International 

Fire Code (!FC), which is a part of the Washington State Uniform Building Code. AST inspection required 

by fire district, tank must be in accordance with API Standard 653 and with the NFPA Uniform Fire Code. 

If the facility transfers oil to or from a tank vessel, such as a barge or oil tanker, or to or from a pipeline, 

then it is subject to Washington State's Contingency Planning and Facility Oil Handling Standards 

regulations (Chapters 173-182 and 173-180 WAC). 

State Fire Marshal's Office 

WRRDA Farm Study I pg 49 
138 


30329.131

Table A-1· Summary of State Regulations and Programs for Oil Storage on Farms 

State AST Regulation and Applicable Requirements 

requirements are administered locally. 

Hawaii No state program was identified, but local and county ordinances cover ASTs. 

Idaho Idaho Department of Environmental Quality does not regulate ASTs and refers to the SPCC rule. Note 

that local fire districts, cities and counties may have AST ordinances. 

https:/ /www .deq.idaho.govfwaste-mgmt·remediation/storage·tanks.aspx 

Mississippi Mississippi Department of Environmental Quality does not regulate ASTs and refers to the SPCC rule. 

Notes that fire marshal, cities and counties may have separate regulations. 

In 2013 a measure was introduced that would have created a program similar to the UST program, but 

for ASTs. The measure was ultimately withdrawn but it would have exempted ASTs used at farms (and 

other sectors). 

http://www .deq.state.ms. us/mdeq.nsf/ page/UST _F AQs?OpenDocument 

Tennessee The State Fire Marshal sets requirements for ASTs, following NFPA 30 and 30A, but does not inspect, 

register, or review site plan. Note that local fire districts, cities and counties may have AST ordinances. 

http://www.tn.gov/fire/documents/storagetanks5.8.12.pdf 

Utah ASTs are exempt from the Department of Environmental Quality requirements under the Petroleum 

Storage Tanks Act. 

The State Fire Marshal enforces state~adopted IFC, but no state program for registration for tanks that 

store flammable liquid or liquid petroleum. Local requirements may differ. For example, Utah County 

requires permit for tanks used for storage, handling or dispensing of flammable and combustible liquids 

on farms and construction sites and which have a storage capacity >10 gallons of Class !liquids or >60 

gallons for Class II or III~A liquids. 

State Fire Marshal 

WRRDA Farm Study i pg 50 
139 


30329.132

References , 

K WCH 12. Old farming equipment costs farmers now. December 2, 2014. 

llttpLvyjvw_J.Yr~!u:L'1llH~"v;;!J()ElbJ;,:w.S:Q)(i:!1mnir'JJ=emlillm~nt~~~ts-tl!J:1J1§r~:l]()l"DQQ2n4~. 

Accessed on December 10, 2014. 

U.S. Department of Agriculture (USDA). 1996. "Cooperative Petroleum Operations, Farmer 

Cooperatives in the United States," Report 1, Section 23, March 1996. 

U.S. Department of Agriculture (USDA). 2005. Fuel/Oil Storage and Delivery for Fanners and 

Cooperatives. March 2005. 

U.S. Department of Agriculture (USDA). 2006. Economic Research Service, "Structure and 

Finances of U.S. Farms: 2005 Family Farm Report"/EIB-12, May 2006 

U.S. Department of Agriculture (USDA). 20 II. Cooperative Statistics 20 I 0, Service Report 71 

November 20! l 

U.S. Environmental Protection Agency (U.S. EPA). 2008. Regulatory Impact Analysis for the Final 

Amendments to the Oil Pollution Prevention Regulations (40 CFR PART 112). November 12, 

2008 

51 
140 

Senator BARRASSO. The Department of Agriculture in Wyoming 

has the responsibility for predator and pest control, the Weed and 

Pest Council, and human health priorities. You oversee this. Can 

you talk about the importance of pest and invasive species control, 

especially in a State with so much public land? 

Mr. MIYAMOTO. Mr. Chairman, I think that Wyoming has a big 

job when it comes to controlling invasive species and for predator 

control, both. We have so many ties to Endangered Species Act and 

other considerations that there is a lot to do. When it comes to our 

predator districts and our weed and pest districts out there in 

those local communities, they have more job than they have time. 

Anything that we can do to streamline the process, as long as we 

are not harming anything on the environmental side of the equation, I think we should pursue that. 

This example that you bring up of FIFRA as opposed to the 

Clean Water Act, NPDES permitting for pesticide applicators, in 

our experience at home, simply isn’t necessary. We do it because 

we have to, but it doesn’t change the application on the ground. 

Senator BARRASSO. Mr. Yates, Section 7 and 8 of the ACRE Act 

deal with the issue of farmer safety and privacy. Could you please 

elaborate on why issues such as the disclosure of sensitive information of the location of certain farming operations or the aerial surveillance of farms by the Federal Government, why these are important and relevant issues to the agriculture community? 

Mr. YATES. Thanks, Senator. I think, like most Americans, farmers and ranchers are very sensitive about their privacy, sensitive 

and concerned about information about their operation. Many 

farmers, it is not just the mailing address of their business; many 

farmers and ranchers live in the location of their business. Having 

that information get out or having aggregate data about farmers in 

a region, a county, a State, is dangerous and concerning for farmers and ranchers. So, I think when we are looking at data, obviously, many of us have discussed the issues of how we can use data 

to be more effective in the work that we do. 

I think we should be mindful of that data and how that data can 

be used and who can access that data; and I think it is important 

in terms of oversight for this Committee to look at protecting the 

use of that date and ensuring that, if data is being requested from 

farmers and ranchers, that it is being done with their permission. 

Senator BARRASSO. One last question, Mr. Yates, before I turn to 

Senator Boozman. The president of your organization, as we talked 

about, Mr. Zippy Duvall, was here and stated in his written testimony to our Committee in February, he said, ‘‘Farm income is reduced about 50 percent compared to 5 years ago.’’ And he went on 

to say, ‘‘But I assure you that regulatory costs have not gone 

down.’’ 

So, in your opinion, will the provisions in the ACRE Act help reduce some of this regulatory burden on farmers and ranchers, and 

improve their income, while at the same time protect the environment? 

Mr. YATES. The short answer to that is yes, Senator, I do believe 

that, and I think the bottom line is, as Congress and as Federal 

agencies look at rules and regulations, I think they should be 

looked at through a lens of is this effective, is this the best way 

141 

to conduct business. When we are looking at the issue of FIFRA 

and the Clean Water Act, the bottom line is, is additional duplicative regulatory requirements going to provide for increased environmental protections on the ground? If the answer to that is no, then 

I think the ACRE Act does a great job in providing for streamlining 

and ensuring that regulatory burdens on farmers and ranchers are 

minimized and are effective in providing for strong environmental 

compliance at the local level. 

Senator BARRASSO. Thank you. 

Senator BOOZMAN. Senator BOOZMAN. Thank you, Mr. Chairman. I apologize for 

being late, late. I had a Veterans Affairs Committee hearing and 

then a Homeland Security, so I have good excuses. The problem is 

right now is there is just a lot going on up here, lots of stuff that 

is important, but positive stuff, so thank you all for being here and 

we do appreciate your testimony. 

Mr. Miyamoto, the FIFRA established an effective and comprehensive regulatory web to provide pesticide-related environmental and public health protection. It is rigorous; it examines the 

environmental data, health exposure assessments for pesticide 

products. This process specifically examines the product’s potential 

impact on water. Additional permit requirements under the Clean 

Water Act are duplicative and will entail significant costs for State 

permitting authorities and pesticide users. 

Could you please highlight some of the challenges that your Department faces when regulating some of the regulatory requirements? 

Mr. MIYAMOTO. Mr. Chairman, Senator, thank you for the question. Our experience in Wyoming has been that we have co-regulated under FIFRA and the Clean Water Act for eight or 9 years 

now. In the beginning there was a whole bunch of education that 

we had to do with our certified pesticide applicators to make sure 

that they understood that they needed to hold not only their certified applicating license, but they also needed to hold an NPDES 

permit. 

I would argue that NPDES permits were designed for a completely different scenario, point source discharges, end-of-pipe type 

regulations, so it was difficult for us to come up with all of the 

right information that should be included in that application in 

order for them to get that permit. 

Today, it is part of our standard operating and we do it, but I 

don’t think that it gives us a corresponding increase in environmental benefit. It is one of those things that we do because we 

have to. 

Senator BOOZMAN. Very good. Thank you very much. Also, many 

feel that the Comprehensive Environmental Response, Compensation, and Liability Act, CERCLA, reporting is unnecessary and was 

never intended to regulate agriculture. Can you talk about some of 

the environmentally based regulations that agriculture producers 

have to comply with and comment on CERCLA? 

Mr. MIYAMOTO. Mr. Chairman, Senator, specifically, I think the 

aim behind CERCLA, or, you know, at least one of the considerations of CERCLA was to look at emissions; and, for agriculture, 

that would be probably most relevant to confined animal feeding 

142 

operations. And when it comes to confined animal feeding operations, the major regulatory law that is in place to guard against 

environmental damage from confining animals and feeding them 

would be the Clean Water Act. 

I have worked extensively in trying to remediate those impacts, 

basically, relocating corrals and feeding areas to where we can 

write comprehensive nutrient management plans that allay a lot of 

the concern of concentrating all of these pollutants in one area and 

allowing them either to volatilize into the air or to get into the 

water. So I think there is a framework in place and Mr. Lyon mentioned NRCS, and they are a good partner of ours and they help 

us with implementing comprehensive nutrient management plans 

for all of these areas that address these concerns. 

Senator BOOZMAN. Very good. Thank you. 

Mr. Yates, a criticism of the EPA under the previous Administration was the Agency’s disconnect with rural America. Many hardworking Americans in rural States feel that they didn’t and still 

really feel like their voice is marginalized. Time and again I heard 

from my constituents who described a ‘‘gotcha’’ attitude from Federal agencies. Instead of working with stakeholders and industry to 

develop and implement rules and regulations, the Federal Government would go it alone, without fully understanding how the rules 

would affect hardworking Americans. 

Can you explain the importance of the Federal Government to 

work hand-in-hand with the stakeholders as we develop rules and 

regulations? And then, also, do you believe that the current Administration has put an emphasis in cooperative federalism? 

Mr. YATES. Senator Boozman, thank you for the question. I 

would suggest that it is critical, be it in our western States that 

have a large abundance of Federal lands, that proper coordination 

and consultation with Federal land management agencies is vital 

to ensuring that the proper decisions are made that make the most 

sense for the land. It certainly goes without saying that coordination between States, Federal Government, and end-users is ultimately going to provide for the best possible result moving forward 

in terms of complying with regulations. 

Ultimately, I think the more interaction the Federal agencies 

have with folks at the local level, the better results you are going 

to have. Certainly, there have been criticisms from one Administration to another about do we have the best relationship, are they engaging with local stakeholders. 

I would suggest that with this Administration, Administrator 

Pruitt, we have had a fantastic working relationship. I know they 

have a lot of work to do and I would like to certainly report that 

relationship is a positive one and we continue to strive to identify 

more opportunities to work hand-in-hand with EPA to identify 

commonsense solutions to the issues that are facing American 

farmers and ranchers. 

Senator BOOZMAN. Good. Thank you, Mr. Yates. 

Senator BARRASSO. Thank you, Senator Boozman. 

Senator CAPITO. 

Senator CAPITO. Thank you, Mr. Chairman. 

Thank all of you. I appreciate you coming in today. I think we 

share with all the witnesses, and really all of us on this Committee 

143 

and in the Senate, that we realize how important our Nation’s 

farmers and ranchers are, and we don’t want to overburden with 

regulations. But we also want to ensure, as Americans, that they 

have the right to privacy like so many of us do. 

When I was over in the House I introduced a bill called the 

Farmer’s Privacy Act. This was in reaction to a situation that occurred in my State of West Virginia, where a poultry farmer was 

surveilled by the EPA—we are not talking about giant operations 

here, we are talking two or three houses—by the EPA and then 

fined accordingly, or investigated. It just struck me that the EPA, 

we found out later, had rented a small aircraft to surveil the small 

farms in the eastern portion of our States. 

I raised the point, even though it is difficult to get from point A 

to point B sometimes because of the mountains that we have, that 

we were violating that farmer’s rights, and it just felt too intrusive 

to me. So, part of what is included in this bill is that privacy provisions. 

I am wondering if you, in Wyoming, have had any of these same 

kind of circumstances where you have had aerial surveillance without permission or if this is an issue in other parts of the Country. 

So, if you want to start, Mr. Miyamoto. 

Mr. MIYAMOTO. Mr. Chairman, Senator, thank you for the question. We have experienced similar type of interest from mostly our 

special interest groups that have targeted individual ranchers and 

then would like to undermine their efforts to conduct successful 

business. 

As a regulatory agency myself, I can tell you that we have been 

able to successfully regulate farms and ranchers in Wyoming without aerially surveilling them. We take that obligation fairly seriously, but I think it can be done, and probably should be done, 

face-to-face. 

Senator CAPITO. Right. Right. 

Does anybody else have any comments on that? I don’t know if 

you heard anything at the Farm Bureau, Mr. Yates. 

Mr. YATES. Senator, thank you. And thank you for your work on 

this important legislation. Again, as I mentioned in my testimony, 

the use of UAS in precision agriculture is a great tool. Many of our 

farmers are employing drones and drone technology. 

Senator CAPITO. Right. 

Mr. YATES. But, again, I think the broader concern for our members is the use of those tools in providing for surveillance of farms 

and farm operations without the consent of the farmer or the landowner; and I think that ultimately, if those tools are going to be 

used, we need to make sure that we ensure that private property 

rights and privacy are taken into account and that farmers provide 

their permission for the use of that technology by a Federal agency 

or an outside organization. 

Senator CAPITO. And that is the substance of my bill, and I want 

to thank the Chairman for including that in there. 

I want to ask another question. We had two things happen, two 

visits I had most recently, one from a beef farmer in our State in 

conjunction with Trout Unlimited. And I think sometimes the misconception that our farmers want to be in opposition of environmental stewardship is just a misplaced concept, but they don’t have 

144 

the resources or the expertise to really move forward with what 

would be the best methods to go forward. 

In this case, Trout Unlimited had partnered with the beef farmer 

to give him the resources to be able to clean up the stream and 

now it is a major trout stream in our area. So the landowner, obviously, has the benefit of that, along with others who want to recreate there. So it has a mutual benefit. 

I would just ask, the partnerships that are developed, we also 

had the Wildlife Resources Foundation were just in our State, wildlife folks were just in, same kind of partnerships that are occurring. Are you finding that is what is happening around in Wyoming, that the private sector and the recreational industry that revolves around using our land and fisheries is the same sort? Because, obviously, in Wyoming tourism is very important as well. 

Mr. MIYAMOTO. Mr. Chairman, Senator, strangely enough, years 

ago I spent a good deal of the early part of my career doing nothing 

but watershed planning on a collaborative and community-based 

standpoint, and I think we developed over two dozen different nonpoint-source watershed-based plans to address 303(d) listed in 

paired segments, and we did it exactly in the manner that you are 

talking about. 

What I learned through that experience is that local, voluntary, 

and incentive-based approaches for water quality improvement 

tend to work much, much better than any regulatory scheme that 

we could put in place to address those issues. 

Senator CAPITO. Thank you. 

And just a final comment, because I am out of time, but I know 

there is a portion of this bill that deals with predatory species. I 

would just mention that I hope—I am not sure that it does because 

I haven’t asked the question yet. But we have a problem with 

coyotes in our area and our livestock, and I would hope that resources would be available to help our agricultural entities deal 

with this predator that is pretty sneaky and pretty tough to get. 

Thank you very much. 

Senator BARRASSO. Well, I want to thank all of the members for 

being here. I appreciate the testimony of the three witnesses. 

Members may submit written questions. I know that Senator 

Carper has suggested he will be submitting some written questions, so I ask that you return those responses quickly. 

The hearing record will remain open for 2 weeks. 

I again want to thank you all for your testimony on this important issue. 

The hearing is adjourned. 

[Whereupon, at 11:29 a.m. the committee was adjourned.] 

[Additional material submitted for the record follows.] 

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~ 

~Congressional • • • Research Service 

Informing leqis!ative dr:bnte since 1914 

MEMORANDUM 

To: Senate Committee on Environment and Public Works 

Attention: Kusai Merchant 

March 7. 2018 

From: David M. Bearden, Specialist in Environmental Policy, dbearden@crs.loc.gov, 7-2390 

Subject: Fair Agricultural Reporting Method Act/FARM Act (S. 2421) 

This memorandum responds to your request for an analysis of the potential effects of amendments to the 

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) proposed in the 

Fair Agricultural Reporting Method Act or "FARM Act" (S. 2421), as introduced in the I 15'" Congress on 

February 13. 2018. The bill would exempt air releases of hazardous substances emitted by animal waste 

at famls from requirements under CERCLA to notity the National Response Center. These amendments 

also would have a bearing on the applicability of requirements under the Emergency Planning and 

Community Right-to-Know Act (EPCRA) to notify state and local officials of such releases. However, 

EPCRA may continue to apply to the reporting of releases of separately listed extremely hazardous 

substances that are not contingent upon reporting under CERCLA, unless these releases may be covered 

by an exemption under EPCRA in current law for substances used in routine agricultural operations. 

Overview 

Whether the reporting requirements ofCERCLA and EPCRA should be applied to air releases of 

hazardous substances from animal waste has been a long-standing issue addressed in multiple hearings 

and legislation in Congress. The purpose of reporting releases under these statutes is to inform federal, 

state, and local emergency response officials if a response action were warranted to protect human health 

and the environment. Some have observed though that reporting may impose a compliance burden 

without a commensurate need if the relative risks of air releases would not warrant a response action in 

most instances. Although others may still value the information gained from reporting to evaluate sources 

of air emissions for regulatory planning or other purposes, such utility would be incidental to the response 

objectives of CERCLA and EPCRA. Potential disclosure of release reports to the public also has been an 

issue, but certain protections are available in current law for sensitive and confidential information. 

During the George W. Bush Administration, the U.S. Environmental Protection Agency (EPA) finalized a 

rule in 2008 to exempt air releases of hazardous substances emitted by animal waste at most fauns from 

reporting under CERCLA and EPCRA, because of its expectation that the relative risks would make a 

response action unlikely or impractical in most cases. EPA did apply EPCRA to require reporting from 

large concentrated animal feeding operations (CAFOs) based on the number and type of livestock, in 

response to some public comments expressing desire for the information. Litigation challenging EPA's 

authority to create this administrative exemption led to a U.S. Court of Appeals for the D.C. Circuit 

decision in April 2017 ( Waterkeeper Alliance, eta/., v. EPA) that vacated the 2008 rule. In response to 
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petitions from EPA during the Trump Administration, the court subsequently stayed (i.e., delayed) the 

issuance of an order to lift the exemption in the 2008 rule until May 1, 2018. 

EPA has released guidance that instructs farms to notify the National Response Center under CERCLA 

once the court issues its order, if air releases of hazardous substances emitted by animal waste are equal to 

or exceed reportable quantities.' The EPA guidance indicates that farms should not report releases to state 

and local officials under EPCRA though, based on the Trump Administration's interpretation that air 

releases from animal waste would be covered under the exemption for substances used in routine 

agricultural operations. The U.S. Court of Appeals April 2017 decision did not refer to this exemption. 

If enacted into law, S. 2421 would amend CERCLA to provide an exemption tt·om the reporting of air 

releases of hazardous substances emitted by animal waste at farms. In turn, this amendment would have 

the effect of exempting such releases of hazardous substances from reporting under EPCRA that is 

contingent upon reporting required under CERCLA. However, the potential applicability of EPCRA to air 

releases of separately listed extremely hazardous substances may depeod on whether the Trump 

Administration's interpretation of the exemption for substances used in routine agricultural operations is 

challenged. Any potential reporting requirements under state or local laws may continue to apply though, 

as neither CERCLA nor EPCRA would preempt such requirements. 

The following sections of this memorandum discuss the purposes of CERCLA and EPCRA in current 

law, the types of hazardous substances and extremely hazardous substances that may be released from 

animal waste at !arms, the George W. Bush Administration 2008 rule, the D.C. Circuit April 2017 

decision that vacated this rule, the Trump Administration's guidance issued in response to the reversal of 

the rule, and how the amendments to CERCLA proposed in S. 2421 may affect reporting requirements. I 

hope that this information is helpful to the Committee.! remain available if the Committee needs further 

assistance from CRS in consideration of S. 2421 and related issues. 

CERCLA 

Enacted in 1980, CERCLA authorized the Superfund program administered by EPA to remediate 

environmental contamination from releases of hazardous substances at sites elevated for priority federal 

attention in coordination with the states, and established the financial liability of"potentially responsible 

parties" (PRPs) associated with a release 2 Congress has amended CERCLA in multiple laws over time to 

clarify the applicability of the statute to federal facilities, and to modify various response, liability, and 

enforcement provisions to address issues that arose during the course of implementation. 3 Although risks 

posed by abandoned hazardous waste sites were a central topic in the debate oflegislation that led to the 

enactment of CERCLA, the final bill that Congress enacted included language more broadly addressing 

past or present releases of hazardous substances across environmental media and industrial, commercial, 

and governmental sectors. 4 

1 For a summary of this guidance, see EPA, Office of Land and Emergency Management, CERCLA and EPC'RA Reporting 

Requirements/or Air Releases of Hazardous Substances from Animal Waste at Farms, 520-F-18-001, February 2018, available 

at: https://www.epa.gov/epcra/fact-sheet-cercla-and-epcra-reporting-requirements-air-releases-hazardous-substances-animal. 

2 42 u.s.c. §§9601-9675. 

3 For a broader discussion of the scope and purposes ofCERCLA than presented in this memorandum, see CRS Report R41039, 

Comprehensive Environmental Response, Compensation, and Liability Act: A Summary of Superfund Cleanup Authorities and 

Related Provisions ofthe Act, by David M. Bearden. 

4 See U.S. Congress, Senate Committee on Environment and Public Works, A Legislative History of the Comprehensive 

Environmental Response. Compensation, and Liability Act of 1980 (Superfund), Public Law 96-510, commiuee print, prepared 

by Congressional Research Service. 97th Cong., 2nd sess., 1983, S. Serial No. 97-14 (Washington: GPO, 1983). 
147 


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Applicability to Releases 

CERCLA generally applies to the release, or the substantial threat of a release, of a hazardous substance 

into the environment within the United States or under the jurisdiction of the United States. The 

geophysical scope of the environment covered under CERCLA encompasses multiple media. The term 

"environment" is defined in Section 101(8) to include surface water, groundwater, a drinking water 

supply, surface soils, sub-surface soils, or ambient air.' As defined in Section I 0 I (22), the term "release" 

also is relatively broad in terms of the manner in which a ha?~rdous substance may enter the environment, 

including spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, 

leaching, dumping, or disposing into the environment. 6 

Section 101 ( 14) of CERCLA references specific categories of chemicals designated under other laws as 

hazardous substances subject to CERCLA. 7 Section I 02 authorizes EPA to designate additional hazardous 

substances that may present substantial danger to public health or welfare, or the environment, if a release 

were to occur8 Section 102 also authorizes EPA to establish a quantitative threshold for each hazardous 

substance to determine when a release must be reported to the federal government. 9 Section 103 requires 

the person responsible for a release to notify the National Response Center, if the release is equal to or 

exceeds the reportable quantity during a 24-hour period. 10 Section 1 03(f) authorizes an exception to offer 

compliance flexibility for a continuous release that is "stable in quantity and rate," in which case notice 

may be provided to the National Response Center on an annual basis as an alternative to daily 

notification.'' However, Section I 03(f) requires intervening updates during the year to report a 

"statistically significant increase" in the quantity of a release above that previously reported or occurring. 

Reporting requirements under CERCLA provide a mechanism through which the federal government may 

become aware of a release to determine whether a response action may be warranted to fulfill the 

objective of the statute to protect human health and the environment. 12 Whether a response action is 

warranted generally would depend on the potential risks of exposure at the site where the release occurs. 

Reportable quantities merely serve as thresholds to determine the quantity of a release that is subject to 

notification, but do not necessarily indicate a particular level of risk. As for any chemical, the potential 

risks of a release would depend on the concentration, duration, and frequency of exposure (i.e., the dose), 

the conditions of exposure, and individual characteristics of the exposed individual." 

Once a release is reported, Section 103(a) requires the National Response Center to notify EPA and other 

appropriate federal agencies, and the state in which the release occurs. 14 If warranted, Section 104 

authorizes federal actions to respond to the release in coordination with the state, including enforcement 

of liability. 15 The federal response authorities of CERCLA are Presidential authorities delegated to EPA 

'42 u.s.c. §960!(8). 

6 42 U.S. C. §9601(22). 

1 42 U.S.C. §9601(14). 

R 42 U.S.C. §9602. 

9 Designated hazardous substances and reportable quantities are codified in federal regulation at 40 C.F.R. Part 302. 

10 42 U.S.C. §9603. The U.S. Coast Guard administers the National Response Center. 11 42 U.S.C. §9603(1). Procedures for filing continuous release reports are codified in federal regulation at 40 C.F.R. §302.8. 12 Releases reported under CERCLA also generate data that some may desire to evaluate sources of pollution for regulatory 

planning or other purposes, although this utility would be incidental to the statutory objective of CERCLA. 

13 For information on risk assessment, see National Academy of Sciences, National Research Council, Science and Decisions: 

Advancing Risk Assessment, 2009, available at: http:llwww.nap.edulcatalog/12209/science-and-decisions-advancing-riskalisessment. This report updates the previous National Research Council risk assessment guidelines issued in 1983. 14 42 U.S.C. §9603(a). 

"42 u.s.c. §9604. 
148 


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and other federal agencies on the National Response Team. 16 The procedures for taking response actions 

under CERCLA are outlined in the National Oil and Hazardous Substances Pollution Contingency Plan. 17 

Section 107 of CERCLA establishes the categories of PRPs who may be held liable for response costs, 

natural resource damages, and the costs of federal studies of potential health hazards that may be 

associated with a release. 18 Fedeml response actions are subject to annual appropriations but may be 

recovered from the liable parties. PRPs generally may include current and past site owners and operators, 

persons who arranged for the treatment, disposal, or transport of a hazardous substance, and transporters 

who selected a site for disposal. 

Section 104 also authorizes federal actions to respond to releases of other pollutants or contaminants that 

are not designated as hazardous substances, if the release would present an imminent and substantial 

danger to public health or welfare. However, CERCLA does not establish liability for such releases, nor 

does the statute require the reporting of such releases. 

Statutory Exemptions 

Although CERCLA is relatively broad in its applicability to releases of hazardous substances, Congress 

has excluded certain types of substances or releases from the statutory definitions in Section 101 that it 

did not intend to be subject to the statute. Section l 07(b) of CERCLA also provides defenses to liability 

for certain conditions beyond a party's control such as an act of God, act of war, or an act or omission of a 

third party. 19 In the 1980 enactment and subsequent amendments, Congress also has exempted specific 

categories of parties, circumstances, or uses that it did not intend to be subject to liability or reporting 

requirements, but for which federal authority remains available to respond to a release if warranted to 

protect human health and the environment. 

Some of these exclusions or exemptions are based on practical considerations, whereas others are 

intended to avoid duplication or overlap with other laws that apply to the same releases. Among the 

exclusions or exemptions more directly relevant to fhe agricultural sector, Congress excluded the "normal 

application of fertilizer" from the definition of the term "release" in Section l 01 (22) of CERCLA, making 

such use not subject to the statute in its entirety. Congress also excluded hazardous substances that may be 

released as a result ofthe proper application of a pesticide from liability under the statute in Section 

107(i),20 and reporting requirements in Section l03(e). 21 The availability of the pesticide exemption is 

dependent upon proper application of the pesticide in accordance with federal registration requirements of 

the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 22 Congress included both the fertilizer 

exclusion and the pesticide exemption in the 1980 enactment. Congress has not since amended CERCLA 

to exempt the agricultural sector more broadly. 

EPCRA 

Once CERCLA required the reporting of releases of hazardous substances to the federal government, 

questions arose as to whether federal law also should require reporting of the same information directly to 

Hi Executive Order 12580, Superfund Implementation, January 23, 1987. 

17 40 C.F.R. Part 300. 

"42 U.S. C. §9607. 

"42 u.s. c. §9607(b). 

"' 42 u.s.c §9607(i). 

21 42 U.S.C. §9603(e). 

22 7 u S.C §§ J36-136y. Demonstration of the proper application of a federally registered pesticide generally would be subject to 

documentation of its use. 
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state and local governments to help facilitate their emergency response capabilities. 23 This question was 

among the prominent topics in the debate of the 1986 amendments to CERCLA. Although some state and 

local laws at that time addressed relea~es of hazardous substances, response authorities and capabilities 

varied among jurisdictions. Congress developed uniform federal requirements for the reporting of releases 

to state and local governments in EPCRA under Title !II of the Superfund Amendments and 

Reauthorization Act of 1986 (P.L. 99-499). Title III enacted EPCRA as a separate law, and not as an 

amendment CERCLA. 24 

EPCRA addresses emergency notification of releases at the state and local level to complement the 

reporting of releases to the federal government under CERCLA. Similar in objective to CERCLA, release 

notification under EPCRA provides a mechanism for state and local governments to determine whether a 

response action may be warranted under their own respective authorities, or in coordination with a federal 

response. Reporting under EPCRA also provides an earlier opportunity for state and local governments to 

become aware of a release instead of relying upon subsequent notification from the National Response 

Center once a release is reported to the federal government. However, EPCRA does not authorize federal, 

actions to respond to a release, nor does the statute establish liability for releases. Federal response 

authorities and liability for releases are rooted in CERCLA. 

EPCRA also requires notification at the state and local level for emergency planning purposes if a facility 

stores extremely hazardous substances or other hazardous chemicals in excess of certain amounts. 25 These 

notification requirements are intended to enhance state and local emergency preparedness in the event of 

an actual release. Other provisions of EPCRA also require the reporting of toxic chemicals used at a 

facility in excess of certain amounts to EPA for public disclosure in the federal Toxic Release Inventory 

(TRI). 26 These emergency planning and TRI disclosure requirements apply to the presence or use of 

chemicals at a facility, in addition to actual releases into the environment. 

Section 324 ofEPCRA generally requires information on chemicals reported for emergency planning 

purposes, disclosure on the TRl, and fo!lowup emergency notices of actual releases to be made available 

to the general public. 27 CERLA does not include similar public disclosure requirements. However, 

followup emergency notices subject to EPCRA generally would include information on releases of 

hazardous substances that are subject to CERCLA. Section 322 of EPCRA authorizes the withholding of 

certain sensitive or confidential information from disclosure to the general public under Section 324. 28 As 

a matter of practice, the National Response Center also maintains a publicly available database that tracks 

the nature and general location of releases of hazardous substances reported under CERCLA, but not 

private or confidential information. 29 The following discussion of EPCRA focuses on emergency 

notification of releases into the environment potentially relevant to air releases, and statutory exemptions 

from notification in current law. 30 

23 Sec U.S. Congress, Senate Committee on Environment and Public Works. A Legislative History of the Superfund Amendments 

and Reauthorization Act of 1986 (Public Law 99-499), committee print, prepared by Congressional Research Service, I 01 st 

Cong .• 2nd sess., 1990. S. Prt. lOl-120 (Wa,hington: GPO, 1990). 

24 42 U.S.C. §§llOOl-11050. 

25 For emergency planning, reportable quantities of extremely hazardous substances are codified in federal regulation at 40 

C.F.R. Part 355, Appendix A, and of hazardous chemicals are codified in federal regulation at 40 C.F.R. Part 370. 

26 Threshold quantities subject to reporting for the TRI are codified in federal regulation at 40 C.F.R. Part 372. 

27 42 u.s. c. §11044. 

28 42 u.s.c. §11042. 

29 Infonnation publicly disclosed from the database is available in reports that track releases by calendar year, available on the 

National Response Center's website at: http://nrc.uscg.rnil. 3

° For a broader discussion ofEPCRA than presented in this memorandum, sec CRS Report RL32683, The Emergency Planning 

and Community Right-to-Know Act (EPCRA): A Summary, by David M. Bearden. 
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Emergency Release Notification 

Section 301 ofEPCRA established the framework for the formation of State Emergency Response 

Commissions (SERCs) appointed by the governor of each state, and Local Emergency Planning 

Committees (LEPCs) within each state appointed by the respective SERC. 3

' Section 302 authorizes EPA 

to establish quantitative thresholds for the reporting of releases of extremely hazardous substances into 

the environment. 32 Most of these substances also are listed as hazardous substances under CERCLA, but 

some of these substances are not designated under CERCLA. 33 Section 304 ofEPCRA applies to 

emergency notification of releases into the environment. 34 This provision outlines three situations in 

which the reporting of releases of extremely hazardous substances or hazardous substances is required. In 

each situation, the person responsible for the release must notifY the SERC and the appropriate LEPC that 

covers the local jurisdiction where the release occurs. 

Two of these situations are contingent upon the release being subject to reporting to the National 

Response Center under Section 103 ofCERCLA. Section 304(a)(l) ofEPCRA requires the notification of 

a release of an extremely hazardous substance to the SERC and the appropriate LEPC, if the release also 

would require notification as a hazardous substance under Section I 03 CERCLA. 35 If a substance is not 

designated as an extremely hazardous substance, Section 304(a)(3) requires the reporting of a release to 

the SERC and the appropriate LEPC if the release still would require notification as a hazardous 

substance under Section I 03 of CERCLA. 36 

Section 304(a)(2) ofEPCRAcovers a third situation in which a substance is separately listed as an 

extremely hazardous substance, but is not subject to reporting under Section I 03 of CERCLA. Section 

304( a)(2) requires the reporting of a release of a separately listed extremely hazardous substance in such 

instances, if the release: 

is not a federally permitted release as defined in Section 101(10) ofCERCLA,37 

is in an amount in excess of a reportable quantity that EPA designated under Section 302, and 

"occurs in a manner" which would require notification under Section I 03 of CERCLA. 38 

With respect to the third criterion, the phrase "occurs in a manner" generally has been implemented over 

time to mean the nature of the release in terms of how the substance enters the environment. Section 329 

of EPCRA defines the term "release" and "environment" similar in scope to CERCLA. 39 The regulations 

that EPA promulgated to implement Section 304 reflect these statutory definitions. 40 

"42 U.S.C. §11001. 

32 42 U.S.C. §11002. 

33 Reportable quantities of extremely hazardous substances subject to emergency relea..;;e notification under EPCRA are codified 

in federal regulation at 40 C.F.R. Part 355, Appendix/\ 

34 42 U S.C. §11004 

35 42 U S.C. §11004(a)(l). 

36 42 U.S. C. §ll004(a)(3) 

n 42 U S.C §9601(10). 

"42 U.S.C. §11004(a)(2). 

3

" 42 U.S.C. §11049. The definition of the term "release" in EPCR/\ is nearly identical to that m CERCLA. The definition of the 

term "environment'' in EPCRA is similar to CERCLA, but is more generally worded in its description to encompass "water, air, 

and land and the interrelationship which exists among and between water, air, and land and all living things." 

"' 40 CF.R. §355.61. 
151 


30329.058

Statutory Exemptions 

In any of these scenarios involving extremely hazardous substances or hazardous substances, Section 

304(a)( 4) exempts a release of either substance from reporting under EPCRA, if the release would result 

in exposure to persons solely within the site or sites on which a facility is located.'' Other factors also 

may determine whether a release is subject to reporting under EPCRA. In each instance of applicability, 

Section 304 refers to the reporting of a release at facilities where a hazardous chemical is produced, used, 

or stored. Conversely, if a hazardous chemical is not produced, used, or stored, at a facility, the reporting 

requirements do not apply. 

Section 311 (e) generally defines the term "hazardous chemical" to mean any such chemical regulated 

under the Occupational Safety and Health Act that is subject to federal requirements for hazard 

communication in the workplace. 42 However, Congress excluded certain uses from this definition in 

EPCRA, thereby exempting these uses from reporting requirements of the statute. Among those more 

directly relevant to the agricultural sector, uses of"any substance to the extent it is used in routine 

agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer" are excluded 

from EPCRA. The statute does not further describe or define the scope of these uses though. Section 

329(5) cross-references the definition in Section 3Jl(e) for application of this exclusion across the 

requirements of the statute. Congress did not include a similarly broad exclusion from CERCLA for 

releases of hazardous substances used in routine agricultural operations. 

Animal Waste 

"Animal waste" per se is not designated in CERCLA as a hazardous substance or in EPCRA as an 

extremely hazardous substance. Numerous studies have examined the chemical constituency of animal 

waste, and associated chemical by-products that may be generated from decomposition of the organic 

matter. For example, a 2003 study by the National Research Council found that air emissions from animal 

waste commonly include ammonia, hydrogen sulfide, methane, volatile organic compounds, and 

particulate matter that may consist of various chemicals. 43 Of these chemicals, ammonia and hydrogen 

sulfide are designated as hazardous substances in regulation under CERCLA 44 and as extremely 

hazardous substances in regulation under EPCRA.'' The threshold for the reportable quantity of a release 

of ammonia or hydrogen sulfide into the environment under either CERCLA or EPCRA is I 00 pounds 

during a 24-hour period into any media (e.g., air, water, or soils). 

If such quantity were released into the ambient air, the concentrations generally would decline with 

increasing distance from the point of release as a result of dispersion.'6 The National Research Council 

2003 study noted that potential risks from air releases would depend on exposure that may vary by site 

and among individuals. The Council found "little scientific evidence" that exposures beyond the 

boundaries of animal feeding operations have significant effects on human health because the 

41 42 U.S.C. §! !004(a)(4). 

"42 U.S.C. § 1102l(c). This provision ofEPCRA references the Occupational Safety and Health Administration's definition of 

a hazardous chemical codified in federal regulation at 29 C.F.R. §1910.1200(c) that means "any chemical which is classified as a 

physical hazard or a health hazard, a simple asphyxiant, combustible dust, pyrophoric gas, or hazard not otherwise classified." 43 National Academies, National Research Council, Air Emissions from Animal Feeding Operations: Current Knowledge, Future 

Needs, 2003, 263 pp. available at: https://www.nap.edu/catalog/l0586/air·emissions·from-animal-fecding-operations-currentknow1edge·future-needs. 

44 40 C.F.R. §302.4. 45 40 C.F.R. Part 355, Appendix A. 46 The rate of dispersion of a chemical released into ambient air would depend on multiple factors (e.g., properties of the 

chemical, wind, temperature, humidity, and interaction with other chemicals present in the atmosphere). 
152 


30329.059

concentrations "usually" are below threshold levels that would present a health risk. 47 The Council 

observed that risks of inhalation may be more significant within the boundaries of an animal feeding 

operation and within enclosed animal housing where concentrations are higher. The Council identified 

technical challenges in capturing and measuring air releases from animal waste for regulatory purposes, 

but recommended additional research and the development of best management practices to mitigate air 

releases. Additional studies have examined these issues since that time. 48 

EPA 2008 Rule 

As a matter of implementation, EPA historically has not applied CERCLA and EPCRA to air releases of 

hazardous substances from animal waste at farms, with the exception of large concentrated animal 

feeding operations (CAFOs) subject to EPCRA under a 2008 rule. On December 18, 2008, EPA finalized 

a rule during the George W. Bush Administration to establish an administrative exemption from reporting 

requirements ofCERCLA for air releases of hazardous substances from animal waste at all farms, and to 

apply EPCRA only to large CAFOs of certain sizes!9 The rule specified thresholds for the maximum 

number of livestock by type that an operation could stable or confine to qualify for the exemption from 

reporting under EPCRA. The rule exempted air releases from animal waste oflivestock that are not 

stabled or confined. Operations that stable or confine livestock in numbers equal to or greater than the 

following thresholds were considered sufficiently large to make them subject to emergency notification 

requirements for air releases in excess of reportable quantities under EPCRA: 

700 mature dairy cows, whether milked or dry; 

1,000 veal calves; 

1,000 cattle other than mature dairy cows or veal calves (cattle includes but is not limited 

to heifers, steers, bulls and cow/calfpairs); 

2,500 swine each weighing 55 pounds or more; 

I 0,000 swine each weighing less than 55 pounds; 

500 horses; 

• 10,000 sheep or lambs; 

55,000 turkeys; 

30.000 laying hens or broilers. if the farm uses a liquid manure handling system; 

125,000 chickens (other than laying hens), if the farm uses other than liquid manure 

handling system; 

82,000 laying hens, if the farm uses other than a liquid manure handling system; 

30,000 ducks (if the farm uses other than a liquid manure handling system); or 

5.000 ducks (if the farm uses a liquid manure handling system). 50 

41 National Academics, National Research Council, Air Emissions from Animal Feeding Operations: Current Knowledge, Future 

Needs, 2003, p. 66. 

48 For example, see National Association of Local Boards of Health, Understanding COncentrated Animal Feeding Operations 

and Their impact on Communitiest 2010, prepared under a cooperative agreement with the Centers for Disease Control and 

Prevention, available at: https:/lwww.cdc.govlncehlehsldocsiunderstanding_cafos_nalboh.pdf. This study includes a bibliography 

of numerous other studies as well. 

49 U.S. Environmental Protection Agency, "CERCLNEPCRA Administrative Reporting Exemption for Air Releases of 

Hazardous Substances from Animal Waste at Farms," 73 Federal Register 76948-76960, December 18,2008. 

50 40 C.F.R. §355.3l(g). 
153 


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In the preamble to the final rule, EPA noted a petition submitted in August 2005 by the National Chicken 

Council, National Turkey Federation, and U.S. Poultry and Egg Association requesting an administrative 

exemption from CERCLA and EPCRA reporting requirements specifically for ammonia emissions from 

poultry operations. However, EPA indicated that the final rule was not a direct response to that petition. 51 

EPA stated that the exemption from reporting was warranted in its view because a response action would 

be "impractical" or "unlikely" in most instances, and that the exemption was consistent with the agency's 

goal of reducing the "burden" of reporting releases for which response actions most often are not 

expected. 52 EPA explained that its decision to apply EPCRA to large CAFOs was based on a response to 

public comments on the 2007 proposed rule by some who expressed a desire for this infonnation because 

of the potentially greater magnitude of air releases. 53 The proposed rule would have exempted CAFOs of 

any size from reporting requirements. 54 

The 2008 rule did not exempt air releases from animal waste at fanns from liability under Section I 07 of 

CERCLA or otherwise restrict EPA's authority under Section I 04 to take federal response actions if 

warranted to protect human health and the environment. The 2008 rule also did not exempt air releases of 

hazardous substances from other potential sources at fanns, or releases of hazardous substances from 

animal waste into other environmental media (e.g., soil, groundwater, or surface water), if such releases 

were to exceed thresholds for reporting. 

However, releases from animal waste into surface waters in compliance with a Clean Water Act discharge 

penni! would be treated as a "federally permitted release" under Section 101(10) ofCERCLA. 55 Section 

1 03( a) exempts federally pennitted releases from reporting under the statute, 56 and Section 1 07(j) 

exempts federally pennitted releases from liability under the statute. 5

7 Federally pennitted releases 

exempt under CERCLA also are exempt from reporting under EPCRA. Exemptions for federally 

pennitted releases are based on the presumption that regulation under another federal law would address 

potential risks. In current law, there is no similar pennitting of air releases of hazardous substances from 

animal waste upon which to base a federally pennitted release exemption. 

Litigation Challenging the EPA 2008 Rule 

The Waterkeeper Alliance and other organizations filed a petition for review in court to challenge EPA's 

authority to issue the 2008 rule, arguing against EPA's conclusion that the reporting ofha?~rdous 

substance releases from animal waste at fanns under CERCLA and EPCRA is "unnecessary. " 58 On April 

11, 2017, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) granted the 

petition and vacated the exemptions from reporting in the 2008 rule. 59 The court held that Congress did 

not authorize EPA to exempt releases of hazardous substances from the statutory reporting requirements 

under CERCLA and EPCRA. 60 The court concluded that the infonnation gained from this reporting 

51 U.S. Environmental Protection Agency, "'CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of 

Hazardous Substances from Animal Waste at Farms," 73 Federal Register 76951, December 18, 2008. 

52 Ibid., 73 Federal Register 76949. 

53 Ibid., 73 Federal Register 76950. 

54 U.S. Environmental Protection Agency, "CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of 

llazardous Substances from Animal Waste," 72 Federal Register 73700-73708, December 28, 2007. 

55 42 U.S.C s9601(10). 

sr. 42 U.S C. §9603(a). 

57 42 U.S.C. s9607(j). 

"Petition for Review. Waterkeeper Alliance v. EnvtL Prot. Agency, 853 F.3d 527 (D.C. Cir. Jan. 15, 2009) (No. 09-1017) 

"Waterkeeper Alliance v. EnvtL Prot. Agency, 853 F.3d 527,537-38 (D.C. Cir. 2017). 

r,o Jd at 534-36. 
154 


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10 

would not have "trivial or no value," but that the information could potentially provide "some real 

benefits" to the public and local emergency responders. 61 The court subsequently approved multiple EPA 

motions to stay (i.e., delay) the issuance of an order to lift the exemptions in the 2008 rule to allow more 

time to develop procedures for reporting and collecting release data, considering the potentially large 

number of farms that had not reported previously under the 2008 rule. The court granted the most recent 

stay on February 1, 2018, extending it until May I, 2018."2 

Trump Administration Guidance 

During the Trump Administration, EPA has issued guidance to instruct farms that they should comply 

with the reporting of air releases under Section 103 of CERCLA through filing annual continuous release 

reports with the National Response Center once the court order becomes effective after the expiration of 

the stay. 63 EPA has issued guidelines for farms to estimate the quantity of continuous releases using 

various existing methodologies, and has announced that the agency is developing additional 

methodologies to better inform emission estimates. This guidance for continuous release reporting and 

emission estimates applies to reporting under Section 103 of CERCLA. 

EPA also has issued separate guidance outlining the Trump Administration's interpretation that farms 

using substances in "routine agricultural operations" are excluded from emergency notification of releases 

under Section 304 of EPCRA. 64 Based on this interpretation, EPA has announced that farms are not 

required to report air releases from animal waste to state and local o!Ttcials, and that the agency intends to 

conduct a rulemaking on its interpretation of this exemption. The George W. Bush Administration did not 

render an interpretation of the "routine agricultural operations" exemption in its 2008 rule and instead 

determined that Section 304 of EPCRA did apply to large CAFOs. The April 2017 D.C. Circuit decision 

made no reference to this particular exemption in EPCRA. 

5.2421 

As introduced, S. 2421 would amend Section l03(e) ofCERCLA to exempt "air emissions from animal 

waste (including decomposing animal waste) at a farm" from reporting to the National Response Center 

regardless of the quantity of the release of hazardous substances in air emissions. The bill would define 

the term "animal waste": 

to mean "feces, urine, or other excrement, digestive emission, urea, or similar substances 

emitted by animals (including any form of livestock, poultry, or fish)," and 

to include "animal waste that is mixed or commingled with bedding, compost, teed, soil, 

or any other material typically found with such waste." 

S. 2421 would define the term "farm" to mean a site or area (including associated structures) that: 

61 !d. at 535-38. 

62 Per Curiam Order, Waterkeeper Alliance v. Envtl. Prot. Agency, 853 F.3d 527 (D.C. Cir. Feb. I, 2018) (No. 09-1017). 

63 During the Trump Administration, EPA has issued guidance for fanns to report air releases from animal waste once the court 

order becomes effective. See "CERCLA and EPCRA Reporting Requirements for Air Releases of Hazardous Substances from 

Animal Waste at Farms" available at: https://www.epa.gov/epcra/cercla-and-epcra-reporting-requirements-air-releaseshazardous-substances-animal-waste-farms (as viewed on March 7, 2018). 

64 EPA, Office of Land and Emergency Management, Does EPA Interpret EPCRA Section 304 to require farms to report 

releases from animal waste?, October 25~ 2017, available at: https://www.epa.gov/epcra/question-and-answer-epcra-reporting~ 

requirements-air~releases-hazardous-substances-animal. 
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is used "for the production of a crop;'' or "the raising or selling of animals (including any 

form of livestock, poultry, or fish);" and 

• "under normal conditions, produces during a farm year any agricultural products with a 

total value equal to not less than $1.000." 

11 

S. 242! would not exempt such air emissions from federal response authority under Section 104 if action 

were warranted to protect human health and the environment, or potential liability under Section 107. 

In current law, Section !03(e) ofCERCLA exempts the proper application of a federally registered 

pesticide from reporting. S. 242! would strike Section l03(e) in its entirety, reinsert this existing 

exemption, and add an exemption for air emissions from animal waste at farms as defined in the bill. S. 

242! would not alter the treatment of pesticides under CERCLA in current law. 

S. 2421 would not amend EPCRA. However, exempting releases of hazardous substances in air emissions 

from animal waste at farms from reporting under Section I 03 of CERCLA would have the etTect of 

exempting such releases ti·om reporting to state and local officials under Section 304(a)(l) and Section 

304(a)(3) ofEPCRA. Reporting is required under both of these provisions contingent upon reporting of 

hazardous substances required under Section I 03 of CERCLA. Exempting a release from reporting under 

Section 103 of CERCLA thereby would exempt the same release from reporting under these twn 

provisions in Section 304 of EPCRA. 

Whether releases of extremely hazardous substances in air emissions from animal waste would remain 

subject to other provisions of EPCRA would depend on two factors. First, Section 304(a)(2) applies to 

releases of separately listed extremely hazardous substances that are not subject to reporting as hazardous 

substances under Section I 03 of CERCLA. For example, ammonia and hydrogen sulfide are listed 

separately as extremely hazardous substances under EPCRA, not only as hazardous substances under 

CERCLA. An exemption from CERCLA therefore may not necessarily apply to separately listed 

extremely hazardous substances covered under Section 304(a)(2) ofEPCRA. Second, if substances 

released !rom animal waste may be considered substances used in routine agricultural operations, such 

releases may be exempt from reporting under EPCRA altogether, as the Trump Administration has 

interpreted. 

If enacted into law, S. 2421 would amend CERCLA to provide an exemption from the reporting of air 

releases of hazardous substances emitted by animal waste at farms. In turn, this amendment would have 

the effect of exempting the same releases of hazardous substances from reporting under EPCRA that is 

contingent upon reporting required under CERCLA. However, the potential applicability of EPCRA to air 

releases of separately listed extremely hazardous substances may depend on whether the Trump 

Administration's interpretation of the exemption for substances used in routine agricultural operations is 

challenged. Any potential reporting requirements under state or local laws may continue to apply though, 

as neither CERCLA nor EPCRA would preempt such requirements. 
156 


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~ 

~Congressional • •• Service 

Jnfonninq theleQislative dt:bate 1S)14 

MEMORANDUM 

To: Senate Committee on Environment and Public Works 

Attention: Kusai Merchant 

Honorable Cory A. Booker, Ranking Member 

Subcommittee on Superfund, Waste Management, and Regulatory Oversight 

Attention: Adam Zipkin 

March 13, 20 18 

From: 

Subject: 

David M. Bearden, Specialist in Environmental Policy, dbearden@crs.loc.gov, 7-2390 

Supplemental Analysis: Fair Agricultural Reporting Method Act/FARM Act (S. 2421) 

This memorandum responds to your request for a more detailed discussion of the analysis presented in a 

CRS memorandum provided on March 7, 2018. CRS prepared this earlier memorandum to respond to 

your initial request for an analysis of amendments to the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA) in the Fair Agricultural Reporting Method Act or "FARM 

Act" (S. 2421), as introduced on February 13,2018. As discussed in the March 7"'CRS memorandum, S. 

2421 would exempt air releases of hazardous substances emitted by animal waste at farms from reporting 

requirements under CERCLA, and would have a bearing on the applicability of reporting requirements 

under Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA). 

This supplemental memorandum elaborates upon the analysis presented in the March 7'" CRS 

memorandum to outline circumstances in which the emergency notification requirements in Section 304 

of EPCRA would apply under current law, and the bearing ofS. 2421 on the applicability of these 

requirements to air releases emitted by animal waste. The March 7'" CRS memorandum provides 

additional background information in support of this analysis, and offers a broader examination of how S. 

2421 would define the terms "animal waste" and "farm" for purposes of the bilL l hope that this 

supplemental memorandum is helpful to address your questions about circumstances in which EPCRA 

may continue to apply ifS. 2421 were enacted. If you need further assistance from CRS in consideration 

of this legislation or related issues, please do not hesitate to contact me. 

Section 304 of EPCRA 

As explained in the March 7'" CRS memorandum, Section 304 ofEPCRA outlines three situations in 

which the reporting of releases of extremely hazardous substances or hazardous substances into the 

environment is required.' In each situation. the person responsible for the release must notify the State 

Emergency Response Commission (SERC) and the appropriate Local Emergency Planning Committee 

'42 U.S.C §11004 
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(LEPC) that covers the local jurisdiction where the release occurs. Two of these situations are contingent 

upon the release being subject to notification under Section 103 of CERCLA for reporting to the National 

Response Center.2 The third situation is not contingent upon reporting under CERCLA. The three 

situations covered in Section 304 ofEPCRA are as follows. 

Section 304(a)(l) requires notification of releases of extremely hazardous substances listed under 

EPCRA, if the release would require notification for hazardous substances under Section I 03 of 

CERCLA3 

Section 304(a)(3) requires notification of releases of other hazardous substances that are not 

separately listed as extremely hazardous substances under EPCRA, if the release would require 

notification under Section I 03 of CERCLA.' 

Section 304(a)(2) requires notification of releases of extremely hazardous substances listed under 

EPCRA (but that are not subject to notification under CERCLA), if three criteria are met 5 

In this third situation, releases of extremely hazardous substances listed under EPCRA would require 

notification under Section 304(a)(2), if the release: 

(A) is not a federally permitted release as defined in Section I 01(1 0) of CERCLA;6 

(B) is in an amount in excess of a reportable quantity that the U.S. Environmental 

Protection Agency (EPA) designated under Section 302 of EPCRA;7 and 

(C) "occurs in a manner'' that would require notification under Section I 03 of CERCLA. 

5.2421 

S. 2421 would amend Section I 03( e) of CERCLA to exempt "air emissions from animal waste (including 

decomposing animal waste) at a farm" from reporting to the National Response Center regardless of the 

quantity of the release of hazardous substances in air emissions. The bill would not amend Section 304 or 

any other provisions of EPCRA. Although S. 2421 would not amend this statute, the bill would have the 

effect of eliminating reporting requirements under Section 304(a)(l) and Section 304(a)(3) of EPCRA for 

air releases of hazardous substances emitted by animal waste at farms, in so far as the terms "animal 

waste" and "farm" are defined in the bill. 

Both Section 304(a)(1) and Section 304(a)(3) ofEPCRA are contingent upon reporting required under 

Section I 03 of CERCLA. Exempting a release from reporting under Section I 03 of CERCLA thereby 

would have the effect of exempting the same release from reporting under Section 304(a)( 1) and Section 

304(a)(3) of EPCRA. The April 2017 court decision referenced in the March 7'h CRS memorandum 

(Waterkeeper Alliance, eta!., v. EPA) described this statutory relationship in terms of"a release that 

triggers the CERCLA duty also automatically trips the EPCRA reporting requirements in subsections (I) 

and (3)" of Section 304.8 

2 42 u.s. c. §9603 

3 42 U S.C. §11004(a)(l). 

4 42 US. C. §11004(a)(3). 

'42 U.S. C. §11004(a)(2). 

'' 42 \J.S.C. §9601(10) 

7 42 \J.S.C. §11002. 

'Waterkeeper Alliance v. Envtl. Prot. Agency, 853 F.3d 527, 537.38 (D.C. Cir. 20 17). 
158 


30329.065

S. 2421 would not have a bearing on the reporting of releases of extremely hazardous substances under 

Section 304(a)(2) of EPCRA though, as this provision is not contingent upon reporting required under 

Section 103 ofCERCLA. If the exemption from CERCLA inS. 2421 were enacted, the applicability of 

Section 304(a)(2) therefore would remain the same as in current law. An air release of an extremely 

hazardous substance emitted by animal waste at a farm would be subject to Section 304(a)(2) if all three 

statutory criteria for reporting were met. 

An air release of an extremely hazardous substance emitted by animal waste would satisfy the first 

criterion in Section 304(a)(2)(A) if it were not a federally permitted release. Section 101(10) ofCERCLA 

defines the term "federally permitted release" to mean releases regulated under other specific laws. 

Section 10 l ( l O)(H) authorizes a federally permitted release for '"any emission into the air" subject to a 

permit, regulation, or State Implementation Plan, pursuant to the Clean Air Act. 9 CRS is not aware of the 

use of these authorities to regulate air releases emitted by animal waste upon which a federally permitted 

release presently could be based. If such air releases were permitted under the Clean Air Act, the releases 

would be exempt from reporting and liability under CERCLA as a federally permitted release, and 

thereby exempt from reporting to state and local officials under Section 304 of EPCRA. 

An air release of an extremely hazardous substance emitted by animal waste would satisfy the second 

criterion in Section 304(a)(2)(B) if the quantity of the release were to exceed the quantitative threshold for 

reporting that EPA designated in federal regulation pursuant to Section 302 of EPCRA. 10 For example, 

EPA separately listed ammonia and hydrogen sulfide (substances commonly emitted by animal waste) as 

extremely hazardous substances, and designated 100 pounds released during a 24-hour period as the 

threshold for reporting under Section 302 of EPCRA. Air releases of ammonia or hydrogen sulfide 

emitted by animal waste in excess of 100 pounds during a 24-hour period therefore would satisfy this 

second criterion in Section 304(a)(2)(B). 

An air release of an extremely hazardous substance emitted by animal waste (e.g., ammonia or hydrogen 

sulfide) would satisfy the third criterion of Section 304(a)(2)(C) ofEPCRA, if the release were to occur in 

the same manner as a "release" that would require reporting under CERCLA. As outlined in the March 7'h 

CRS memorandum, the term "release'' in CERCLA is relatively broad with respect to the manner in 

which a hazardous substance may enter the environment, including spilling, leaking, pumping, pouring, 

emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the 

environment.'' The term "environment" is defined in Section l 0 l (8) of CERCLA to include surface 

water, groundwater, a drinking water supply, surface soils, sub-surface soils, or ambient air. 12 Section 329 

of EPCRA defines the terms "release" and "environment" similar in scope to CERCLA. 13 The federal 

regulations promulgated under Section 304 of EPCRA reflect these statutory definitions. 14 Both CERCLA 

and EPCRA generally treat emissions into the ambient air as releases into the environment. 

In implementation, EPA has treated the phrase "occurs in a manner" in EPCRA Section 304(a)(2)(C) to 

mean the nature of the release in terms of how a substance enters the environment, not that reporting is 

required under Section 103 ofCERCLA. Otherwise, Section 304(a)(2) would be rendered meaningless in 

'' 42 U S.C. s9601(10)(H) 

10 Reportable quantities tOr extremely hazardous substances subject to emergency release notification under Section 304 of 

EPCRA are codified in federal regulation at 40 CF.R. Part 355, Appendix A 

II 42 U.S.C §9601(22). 

12 42 U.S.C. §9601(8). 

13 42U.S.C. §11049. The dcflnition of the term "release" in EPCRA is nearly identical to that in CERCLA The definition of the 

term "environment" in EPCRA is similar to CERCLA, but is more generally worded in its description to encompass "water, air, 

and land and the interrelationship which exists among and between water, air, and land and alllivmg things." 

14 40 C.F.R. 9355.61. 
159 


30329.066

covering releases of extremely hazardous substances that do not require reporting as hazardous substances 

under CERCLA, while requiring reporting under CERCLA at the same time. 

The March 7'h CRS memorandum observed that the exemption from reporting under Section I 03 of 

CERCLA inS. 2421 may not necessarily exempt releases of separately listed extremely hazardous 

substances from reporting under Section 304(a)(2) of EPCRA. The applicability of this provision to a 

particular release would depend on whether all three statutory criteria outlined above are met. Regardless 

ofthcse criteria though, Section 304 in its entirety may not apply to air releases from animal waste at 

farms if the Trump Administration's interpretation of the exemption for substances used in routine 

agricultural operations is not challenged." S. 2421 would not have a bearing on this exemption. 

Also as noted in the March 7'h CRS memorandum, potential reporting requirements under state or local 

laws may continue to apply regardless of an exemption in federal law, as neither CERCLA nor EPCRA 

would preempt such state or local requirements. 

15 The March 71

h CRS memorandum provides further discussion of the Trump Administration's interpretation of the exemption in 

Section 3ll(e) ofEPCRA for substances used in routine agricultural operations. This interpretation is outlined in the following 

agency guidance: EPA. Office of Land and Emergency Management, Does EPA Interpret EPCRA Section 304 to require farms 

to report releases/rom animal waste?, October 25, 2017, available at: https://www.epa.gov/epcralquestion~and~answer-epcrareporting-requirements-air-releases-hazardous-substances-anirnal. 
160 


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National Advocacy Center 

1200 G Street NW, Suite 900 " Washington. DC 20005 "' 202-797-6800 

March 13,2018 

The Honorable John Barrasso 

Chairman 

Committee on Environment & Public 

Works 

Washington, DC 20510 

The Honorable Tom Carper 

Ranking Member 

Committee on Environment & Public 

Works 

Washington, DC 

20510 

Dear Chairman Barrasso, Ranking Member Carper, and Members of the EPW Committee: 

The National Wildlife Federation would like to share our concerns with the '"Agriculture 

Creates Real Employment (ACRE) Act" in advance of tomorrow's hearing on this bill, 

on behalf of our approximately six million members and supporters nationwide. While 

we have many partners in agriculture, and are strong supporters of responsible 

agricultural practices, this bill is a package of provisions that would undermine bedrock 

environmental safeguards for wildlife and water. These provisions threaten fish and 

wildlife habitat and populations as well as the drinking water and health of rural 

communities. America's outdoor recreation economy depends on the rivers, lakes, and 

streams protected by the Clean Water Act, and America's 47 million sportsmen rely on 

clean water for quality fishing and hunting. To protect water quality, fish health and 

America's outdoors heritage, we urge opposition to this bill. Some of our concerns are 

described below. 

Section 4 of the Acre Act would arbitrarily exempt sea urchins and sea cucumbe1·s 

from the Endangered Species Act (ESA) and Fish and Wildlife Service regulations, 

specifically export permitting requirements. Sea urchins and cucumbers are a highly 
161 


30329.068

sought after food product, particularly as a delicacy in Asian markets. As a result of this 

demand, sea cucumbers in particular have been overharvested and are subject to illegal 

smuggling. Both species play important roles in marine ecosystems. Export permitting 

and licensing requirements help the U.S. Fish and Wildlife Service make sure these and 

other species are not overharvested, yet the requirements are designed to be compatible 

with legal commercial activities. If any unnecessary or unjustified delays to commerce 

arise, for example due to inspections, they can be resolved administratively through 

improved implementation. Given the commercial and illegal pressure on sea cucumber 

and urchin populations, export pennits and licenses serve an important role in 

maintaining the populations of these species and their role in the marine environment. 

Congressional intervention is not needed, and there is no justification for creating a 

loophole in the ESA or Fish and Wildlife Service regulations for these two species. 

Section 6 of the ACRE Act would eliminate important Clean Water Act safeguards 

that protect our streams, rivers, and lakes from excessive pesticide pollution. It 

would allow pesticides to be sprayed into water bodies without any meaningful oversight 

due to the fact that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does 

not require tracking of such pesticide spraying, Nearly 2,000 waterways in the United 

States are known to be impaired because of pesticide pollution, and pesticides pose a 

particularly concerning threat to wildlife populations. Passage of this bill would limit 

Clean Water Act tools and, by relying solely on FIFRA to control pesticide pollution, 

eliminate meaningful oversight of pesticide discharge. The Clean Water Act provides 

generous exemptions and pragmatic general permits for agriculture and forestry that 

allow for efficient and effective pesticide use while protecting drinking water and 

wildlife. There is no need to change existing, commonsense Clean Water Act protections 

preventing excessive pesticide pollution. 

Section 7 bars the U.S. Environmental Protection Agency (EPA) from sharing basic 

information about large-scale industrial agricultural operations that generate 

significant loads of pollution. The bill would attempt to conceal information about 

waste management and facilities' proximity to waterways, making it difficult for states 

and their residents to understand where health-harming pollution is coming from. The 

bill's new secrecy provision would require EPA to hide already publicly available 
162 

Æ 


30329.069

information that is vital for protecting surrounding communities, drinking water supplies, 

and fish and wildlife against environmental hazards. Large livestock facilities generate an 

enormous amount of waste-- sometimes as much waste as an entire city. The waste, 

which may contaminate nearby waters. contains bacteria and viruses, pharmaceuticals, 

and nitrogen and phosphorus that can cause oxygen-depleting and toxic algal outbreaks. 

The waste from these large-scale industrial agricultural operations is a serious threat to 

downstream communities, fish and wildlife, and the outdoor recreation economy. The 

public has a right to know if these threats are lurking in the waters on which we depend. 

Section 10 would make it even more difficult for the EPA to enforce oil spill 

prevention and response requirements on large-scale industrial agriculture 

operations. The Clean Water Act requires facilities to take steps to prevent and respond 

to oil spills in order to prevent pollution of nearby waters. Fanning operations are already 

treated more leniently than other industrial operations, but this bill would weaken those 

requirements further. Oil spills on fanns are no less threatening to water resources than 

oil spills at other operations, and facilities that store significant amounts of oil should all 

be responsible for taking precautions against polluting nearby waterways. 

Section II places an unnecessary burden on the Fish and Wildlife Service and 

Animal Plant Health Inspection Service (APHIS) to further speed up permits 

for control of eagles, migratory birds, and species deemed a nuisance. The 

Fish and Wildlife Service and APHIS are already empowered and incentivized to 

collaborate and efficiently issue permits responding to harassment, nuisances, and 

predation. There is no problem and Congressional intervention is not necessary. 

Thank you for taking our concerns into account as you consider this bilL 

The National Wildlife Federation