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81–483 PDF 2013

TO CONSIDER A DISCUSSION DRAFT ENTITLED 

‘‘INCREASING MANUFACTURING COMPETITIVENESS THROUGH IMPROVED RECYCLING ACT 

OF 2012’’ AND H.R. 2997, ‘‘THE SUPERFUND 

COMMON SENSE ACT’’ 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

JUNE 27, 2012 

Serial No. 112–156 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chairman 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

TIM MURPHY, Pennsylvania 

Vice Chairman 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

JOHN SULLIVAN, Oklahoma 

CHARLES F. BASS, New Hampshire 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

BILL CASSIDY, Louisiana 

CORY GARDNER, Colorado 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

GENE GREEN, Texas 

Ranking Member 

TAMMY BALDWIN, Wisconsin 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

FRANK PALLONE, JR., New Jersey 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JOHN D. DINGELL, Michigan (ex officio) 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

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

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

Prepared statement .......................................................................................... 4 

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

opening statement ................................................................................................ 18 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 19 

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

Hon. Cory Gardner, a Representative in Congress from the State of Colorado, 

opening statement ................................................................................................ 22 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 22 

WITNESSES

Hon. Billy Long, a Representative in Congress from the State of Missouri ....... 24 

Prepared statement .......................................................................................... 27 

Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response, Environmental Protection Agency .......................................... 31 

Prepared statement .......................................................................................... 34 

Answers to submitted questions ...................................................................... 137 

Charles D. Johnson, Vice President, Environment, Health, and Safety, The 

Aluminum Association, Inc. ................................................................................ 57 

Prepared statement .......................................................................................... 60 

Answers to submitted questions 1 ...................................................................

Lynn M. Bragg, President, Glass Packaging Institute ......................................... 65 

Prepared statement .......................................................................................... 67 

Answers to submitted questions ...................................................................... 143 

Jonathan Gold, Senior Vice President, Recovery and Recycling Division, The 

Newark Group, on Behalf of The Paper Recycling Coalition ........................... 78 

Prepared statement .......................................................................................... 80 

Answers to submitted questions ...................................................................... 145 

John H. Skinner, Executive Director and Chief Executive Officer, Solid Waste 

Association of North America .............................................................................. 84 

Prepared statement .......................................................................................... 86 

Susana M. Hildebrand, Chief Engineer, Texas Commission on Environmental 

Quality .................................................................................................................. 96 

Prepared statement .......................................................................................... 98 

Answers to submitted questions ...................................................................... 146 

Walter Bradley, Government and Industry Relations Representative, Dairy 

Farmers of America ............................................................................................. 100 

Prepared statement .......................................................................................... 102 

Ed Hopkins, Director, Environmental Quality Program, Sierra Club ................ 106 

Prepared statement .......................................................................................... 108 

Answers to questions from Mr. Shimkus ....................................................... 153 

Answers to submitted questions ...................................................................... 155 

SUBMITTED MATERIAL

Discussion Draft of H.R. ————, the ‘‘Increasing Manufacturing Competitiveness Through Improved Recycling Act of 2012,’’ submitted by Mr. 

Shimkus ................................................................................................................ 7 

H.R. 2997, ‘‘The Superfund Common Sense Act,’’ submitted by Mr. Shimkus .. 15 

Page

IV 

Letter, dated June 25, 2012, from Dennis Sabourin, Executive Director, National Association for PET Container Resources, to Mr. Shimkus, submitted 

by Mr. Shimkus .................................................................................................... 130 

Letter, dated July 3, 2012, from Timothy R. Gablehouse, Director, Government Relations, National Association of SARA Title III Program Officials, 

to committee leadership, submitted by Mr. Green ............................................ 132 

Letter, dated June 26, 2012, from Bob Stallman, President, American Farm 

Bureau Federation, to Mr. Shimkus and Mr. Green, submitted by Mr. 

Shimkus ................................................................................................................ 135 

1Mr. Johnson did not answer submitted questions for the record by the 

time of printing. 

(1) 

TO CONSIDER A DISCUSSION DRAFT ENTITLED ‘‘INCREASING MANUFACTURING COMPETITIVENESS THROUGH IMPROVED RECYCLING ACT OF 2012’’ AND H.R. 2997, ‘‘THE 

SUPERFUND COMMON SENSE ACT’’ 

WEDNESDAY, JUNE 27, 2012 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:18 a.m., in room 

2322 of the Rayburn House Office Building, Hon. John Shimkus 

(chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, Murphy, Pitts, 

Harper, Cassidy, Gardner, Upton (ex officio), Green, Butterfield, 

Dingell (ex officio), and Waxman (ex officio). 

Staff present: Nick Abraham, Legislative Clerk; Anita Bradley, 

Senior Policy Advisor to Chairman Emeritus; Jerry Couri, Senior 

Environmental Policy Advisor; Dave McCarthy, Chief Counsel, Environment and the Economy; Andrew Powaleny, Deputy Press Secretary; Tina Richards, Counsel, Environment and the Economy; 

Chris Sarley, Policy Coordinator, Environment and the Economy; 

Jacqueline Cohen, Democratic Counsel; Greg Dotson, Democratic 

Energy and Environment Staff Director; Kristina Friedman, Democratic EPA Detailee; and Caitlin Haberman, Democratic Policy Analyst. 

Mr. SHIMKUS. The committee will now come to order. Most people know how we will conduct this day’s hearing. We have four 

panels. We actually have two subject matters. The first panel will 

go relatively quickly, it will be Congressman Billy Long, and then 

the second panel will be the EPA, and then we will follow it by 

panel three and panel four, so probably a productive couple of 

hours this morning. 

So with that we would like to welcome you all, and I recognize 

myself for 5 minutes for my opening statement. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

This subcommittee set an official record last week for length of 

a two-panel hearing, which was very short, but today we make up 

for it with four panels. The chair appreciates Members’ judicious 

use of their time last week and hopes that we can have a repeat 

performance. 

2 

On behalf of the whole subcommittee, we extend congratulations 

to a lucky guy, Jonathan Elkin, and our very best wishes to him 

and his new bride, minority counsel Jacqueline Cohen, who were 

recently married. 

Throughout this Congress, our committee has been investigating 

places where Congress can enhance opportunities for growing the 

private sector of our economy, as well as examining places where 

duplicative red tape creates more burdens, but not greater protection. Our hearing today will examine legislative measures that 

touch upon each of these concepts. 

The first bill is a Discussion Draft which directs EPA to collect 

better information on recyclable materials. As cochairman of the 

House Recycling Caucus, I think the aspect we are looking into is 

particularly interesting and I think we should better understand 

the need for this legislation. 

For decades, the EPA has been publishing a biannual report 

showing what products and materials are commonly collected and 

disposed. All of these materials, including paper, glass, and aluminum, are generated by residential and commercial sectors and 

are recycled, reused, combusted, or land-filled. 

Despite all that has been accomplished in the collection of 

recyclables, there is concern among several recyclers that a considerable amount of quality feedstock materials are not ultimately 

being processed and reused. Many recyclers believe asking smarter 

questions and collecting better data will lead us to solutions to this 

problem. 

The Discussion Draft directs the EPA, with the Energy and Commerce Departments, to gather and review voluntarily submitted information on waste streams and recycling from government and 

private entities. Specifically, the Discussion Draft requires EPA to 

report to Congress within 2 years on each type of recycled material 

separately and cover the quantities collected, the method of collection, the amount of recoverable material, and amount disposed. Importantly, the Discussion Draft leaves it to the private sector to figure out how to best use this information and does not create Federal recycling regulations. 

The second bill under consideration today is H.R. 2997, the 

Superfund Common Sense Act. The bill arises from the concern 

that courts or EPA will spell out something in law that is unwarranted or redundant and never directed by Congress. 

Currently, Section 103 of the Comprehensive Environmental Response Compensation and Liability Act, commonly known as 

CERCLA; and Section 304 of the Emergency Planning and Community Right-to-know Act, commonly known as EPCRA, establish reporting requirements for the release of hazardous substances that 

are above reportable quantities. 

Superfund also imposes strict, joint, several, and retroactive liability for the release of hazardous substances and has response 

and abatement provisions. While manure has not been classified as 

a hazardous waste, concern exists—based on past legal challenges—that litigation or future regulation could change that equation. 

Of note, in 2008, EPA issued a final rule exempting all reporting 

requirements for air releases from manure at farms under Section 

3 

103 of CERCLA. The final rule also exempted certain livestock 

farms, based upon size, that had air emissions from animal waste 

that met or exceeded the level for reporting under EPCRA Section 

304. However, on October 21, 2011, EPA stated in the Federal Register it was ‘‘on a separate track’’ to develop regulations to amend 

reporting requirements for livestock operations for air emissions 

under CERCLA and EPCRA. 

H.R. 2997 clarifies manure is not included in the meaning of 

‘‘hazardous substance’’ or a ‘‘pollutant or contaminant’’ under 

CERCLA. H.R. 2997 also eliminates the emissions reporting requirement for releases associated with manure under CERCLA 

Section 103 and Section 304 of EPCRA. In addition, by changing 

the definition of ‘‘hazardous substance,’’ ‘‘pollutant,’’ or ‘‘contaminant’’ under CERCLA, H.R. 2997 also removes liability for releases 

of manure and precludes use of CERCLA sections dealing with response authorities and abatement actions. 

While H.R. 2997 makes explicit the application of CERCLA and 

EPCRA as it relates to releases associated with manure, the bill 

preserves the applicability of other Federal, State, and local environmental law as it relates to the definition of manure, or the responsibilities or liabilities of persons regarding the treatment, storage, or disposal of manure. 

I want to thank all of our witnesses for coming here to lend their 

time and experience to us. I look forward to their testimony. 

My time has expired and now I would like to recognize the ranking member of the subcommittee, Mr. Green from Texas, for 5 minutes. 

[The prepared statement of Mr. Shimkus follows:] 

4 


81483.001

Opening Statement of the Honorable John Shimkus 

Subcommittee on Environment and the Economy 

Hearing on The Superfund Common Sense Act and The Increasing 

Manufacturing Competitiveness Through Improved Recycling Act of 

2012 

June 27, 2012 

Prepared/or Deliver}~ 

Throughout this Congress, our committee has been investigating places where Congrcss can enhance 

opportunities for growing the private scctor of our economy as well as examining places where 

duplicative red tape creates more burdens, but not greater protection. Our hearing today will examine 

legislative measures that touch upon each of these concepts. 

The first bill is a Discussion Draft which directs FP A to collect better information on recyclable 

materials. As co-chairman of the House Recycling Caucus, I think the aspect we arc looking into is 

particularly interesting and I think wc should better understand the need for this legislation. 

For decades, the EP i\ has been publishing a biennial report showing what products and materials arc 

commonly collected and disposed. All of these materials, including paper, glass, and aluminum, are 

generated by residential and commercial sectors and are recycled, reused, combusted, or lalldfilled. 

Despite all that has been accomplished in the collection of reeyclables, there is concern among several 

recyclers that a considcrable amount of quality feedstock materials arc not ultimately being processed 

and reused. Many recyclers belicve by asking smartcr questions and collecting bcuer data it will lead us 

to solutions to this problem. 

The Discussion Drall directs the EPA, with the Energy and Commerce Departments, to gather and 

review voluntarily submitted information on waste streams and recycling from government and private 

entities. Speeitlcally, the Discussion Draft requires EPA to report to Congress within two years on each 

type of recycled makrial separately and cover the quantities collected, the method of collection, the 

amount of recoverable material, and amount disposcd. Importantly, the Discussion Draft leaves it to the 

private sector to figure out how to best llse this information and docs not create federal recycling 

regulations. 

The second bill under consideration today is H.R. 2997, thc Superfund Common Sense Act. This bill 

arises from the concern that courts or EPA will spcll out something in law that is unwarranted or 

redundant and never directed by Congress. 

Currcntly, Section 103 of the Comprehensive Environmental Response Compensation and Liability Act 

(CERCLA) and scction 304 of the Emergency Planning and Community Right-to-know Act (EPCRA) 

establish reporting requirements it)r the release of hazardous substances that arc above reportable 

quantities. Superfund also imposes strict, joint, several, and retroactive liability for the release of 

hazardous substances and has response and abatcmcnt provisions. While manure has not been c1assif1cd 
5 


81483.002

as a hazardous waste. concern exists based on past legal challenges -- (hat litigation or fnture 

regulation could change that equation. 

Of note, in 2008, EPA issued a final rule exempting all reporting requirements for air releases from 

manure at farms under section 103 ofCERCLA. The fInal rule also exempted certain livestock farms, 

based upon size, that had air emissions Ii'om animal waste that met or exceeded the level for reporting 

undcr EPCRA section 304. However, on October 21,2011, EPA stated in thc Federal Register it was 

"on a separate track" (0 develop regulations to amcnd reporting requirements for livestock operations for 

air emissions under CERCLA and EPCRA. 

) L R. 2997 clarifies manure is not included in the meaning of "hazardous substance" or a "pollutant of 

contaminant" under CERCLA. ILR. 2997 also eliminates the emissions reporting rcquirement for 

releases associated with manure under CERCLA section 103 and section 304 of EPCRA. In addition, 

by changing the definition o["hazardous substance," "pollutant," or "contaminant" under CERCLA, 

!-LR. 2997 also removes liability for releases of manure and precludes usc ofCERCLA sections dealing 

with response authorities and abatement actions. 

Whik !-LR. 2997 makes explicit the application of CERCLA and EPCRA as it relates to releases 

associated with manure, the bill preserves the applicability of other Federal, state, and local 

environmental law as it relates to the deflnition of manure, or the responsibilities or liabilities ofpcrsons 

regarding the treatment, storage, or disposal of manure. 

I want to thank all of our witnesscs for coming here to lend their time and expericnee to us, I look 

forward to their testimony. 

2 
6 

[The information follows:] 

7 


81483.003

F:IKML\M I21EANDCIRECYCLlNGIRD _0 I.X~jscussion Draft] 

[DISCUSSION DRAFf] 

112'1'11 (,()\'OHl'~::-;S 

21l SEI-:NIO:\ H.R. 

To dil'P\'i ttl(' EIlYJrOlllllt'llhd Pl'nh'dioH ~\gt'll('Y, the 1){'}l(!l'tUH'ut of EH('rg'y, 

<Inti tile DepartllH'llt 01' ('(llIlIlIl'rC'(' ie> ('ooI)('rutl' in till' eoliedion nnd 

ullHi,\'sis 01' l'l'eyeiillR dutn; to iW'l'('Hs(' til<' ('oliedion or reC'yciahlp maiel'in\;-;; to ill{,l't'HSP till' m.;e of n'(',\'('lahh' mntpl'ials ill lllHllllf(l('1 Hl'illP: Pl'O(,-

{'sses tlll'oHg'!Jout fhe Pnltpd ;-)1 fl1{';;; nwl to th(ll'('b~' 11l(,l'e(lSe {'llCl'g:\' 

l'ffi('iplj('~·. 

~[ intl'Odll<,eti the foliowing' hill; widell WilS 1'('felT(,(\ to ill(' 

('ulllmitt('e 011 

A BILL 

To dil'c('t tile Em'i!'ollltwlltnl Pro(('('tioll .Ag'(,ll(,~·, the Dl'jl<lt't1lll'1l1 of g]lPI'g)-, and the Dq)1\1'tlll(,llt of COllUlH'I'('(' to 

('ooj)('l'ntt' ill tlw ('oll('('tioll nlHl amtlYNis of' ]'('('.yelillg' data; 

to im'!'('a:-;(' the eoll('('tioll of l'('e~-('lab](, materials; to in-

(']'(~<tfW thl' nl-:(, of !'('('~'('lnbl(' llHltl'rialN in lllmmfaeinring 

jJl'O('('SS('I-: tbroughout tIlt' ('nit(:tl Stnh::;; and to th('l'('b~' 

im'l'('a:-;(' (,l\('l'g~' t'ffi(·jelH',\-, 

Be if ('II({ded by Ihe SCllilfe IIwl lIollse (~r Rcp1'l'scntll2 Iii'!',\' 4th!' rlliled 81ales l\III(:l'ica ill COllgress assem.bled, 

f:WHLC\061912\061912.061.xml 

June 19,2012 (11:38 a.m.) 

(53028811) 
8 


81483.004

F:IKMLIM 121EANDCIRECYCLlNGIRD ~() I XI-Discussion Draft 1 

2 

SECTION 1. SHORT TITLE. 

2 This ,\l'l may he tiled as the "lw'l"('(\sing' l\IHlmfae4 of2()U". 

5 SEC. 2. FINDINGS. 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

Th(' CongT('fifi findfi the following'; 

po1iei('fi that I'l'('oglliz(' and ])]'omotC' the illl'l'eas('d 

('lable 11I(1t(,1'i<ll:-; <lrl' ('Sfie'llt ill 1 ('o!llllu)(liti('fi. l'11tlw1' 

tltatl wastl'. 

and st('('1, alllmimllll, fO!'l'st and papel' Pf'()(l\wts, 

llldal easting, glass. awl plasties mnll1lfHdl1l'illg, ill-

(,l'l'HS(' tlwir ('olllj)('titiwnl'ss h.\' ill('l'('asing their (,llH) Thl' lllmmfal'tm'ing sedor ('(Ill llH'l'PHSl' its 

sioll I('wls, awl furth(,r illlpl'oW diw1'sioll through all 

itH'l'NlS(' in tlIn \'01 1ll Ill' of high qn,\lity l'l'e~'elable Illaterials llsed ill its malll1faetnl'illg pro('('SS('S. 

rJ'lmmgiJ the I1S(, of ],I'l'y('ll'd lllHte]'in1s III 

lil'll of' !'HI\' lllatl'l'inls, !llllll1lf,wiul'(,l's ('all H('hil'\'1' l'llfWHLCI0619121061912.061.xml 

June 19.2012 (11:38 a.m) 

(53028811) 
9 


81483.005

F:\KML\M 12\E;\NDC\RECYCLING\RD~() I.XtUiscussioll Draft] 

" " 

of 92 p('J'(~en1 fot' nlnlllilllllll ('HilS, H4 

2 

3 4,) P<>J'('(,llt for 1'('(',H,led neWSpHpl'r, (Iud :n p('l'(~Cllt 

4 fot' l'e('yeit'd glass. 

5 ((i) III 2010, tll(' Pllited Sinh's n~(',\'eliug' iJl(lm;' 

8 (7) ~I()l'l' tlwn 10,000 ('oll1tll1111ities in the 

J I HlHtel'inls, itwjnding jlHjWr and nimllitllllll, amI 

12 plastic- i111d glnss ('olltailll'l's. 

14 tl1rillg proeessl's ('Ull l'('(hwe ('lll'rg,\' ntili7.atioll and 

15 1Iss(win!P(1 gl'(,(,llhomw gas ('missions, nlHl t11(' ('osl of 

16 pI'odu('illg goods. 

19 1Il dOJlwsti(' ('Ill pI O,YHWIlt, illdndillg 11 igh-pa,\'ing, 

20 hig'hl~' skillpd jobs, 

21 (1 ()) Hee,n,lable materials (',lll ])(' nsed m; feed22 

23 

stC}('l\ to produ('(' 1)(,\\' lllHt('riills nIH1 ill the 

t lmHlg\toll t the ,Yot'hL 

25 l'l'('ydillg data do not pl'()\'idc adl'qnate infonnatioll 

f:WHLC\061912\061912.061.xml (53028811) 

June 19, 2012 (11 :38 a.m.) 
10 


81483.006

FIKMLlM 12IEANDCIRECYCLlNGlRD_Jll.XHliscussion Draft] 

4 

2 l{'('\('d ill \'ill'ions 1ll1l11ieipal ('olledioll sysi('IllS, and 

3 tlnls do not pl'('s('nt an ad('qmlte pietll],(, of th(' 

5 tnI'(,],s for I'(,\\S(' ill tll\'il' jll'O('(,SS('S, 01' ill\' ('os! nJl(l 

7 lllHtl'l'ials ill lllHlHlfadul'illg' Pl'O('(,SS(,S, 

8 (1~) ItllJa'O\Td data w()1l1d \(>(ld to 1H00'(' 111-

9 fOl'l11nl d('('isioll-lYlnkillg' al1l011g' poli(';I' makers nlld 

10 g'OWI'IIIlH'lltal offieinl;;, <lml would help pl'iYai.(' se('jOI' 

12 tlwt('riHls, 

13 SEC, 3. DEFINITIONS. 

14 III this .\d: 

15 (1) .\j):\ll:'\ISTIL\TOH.-Tlw term "~\dlllillis16 t 1'11tOI''' lll('nliS till' . \<imillisLratol' of thl' EllVil'OlI-

]8 

20 ,111IOll!!t of l'('('~'('labh' lIlaterial (h~' \\'('ig'ht) that IS 

21 llsed by lllall1lf'adllj'('!'S, (,OIllPH]'('d to the ,1I11011l1t of 

22 l'('('.wlahle material ,wig'ltt) that is diwl'ied frolll 

23 til(' \\'(lsI{' stl'<',llH, 

24 (:i) :'IIT':'\[( 'Tl'.\L (,OLLEI'TIO:\ 8Y8TE~I.-Th(' 

25 t('l'm "1I11111ieipHl ('oll('('tio!! 

f:IVHLC\061912\061912.061.xml 

June 19, 2012 (11 :38 a.m.) 

(53028811) 
11 


81483.007

F:IKMUM 12IEANDCIRECYCLlNGlRD_O I.X~Dlscussiol1 Draft] 

;) 

t('1ll (hut faeilil"tes diwrsioll frolll nllllli('ipal solid 

2 wast(" ill!'lndillg' dual str('am "lltl singh' stream 

4 t('IllS, drop-off eolkd ion s~'st(,Il\S, OJ' H n~- other s,n;-

5 telll thai l'PS11ltS ill snell diw]'sioJl. 

6 (4) Drn;muox,-Tlw t(,],IllS "diY(']'sioll" and 

7 "diw]'(" llH'all the ('()lkdillg of !'('l',wlahk llwtl'l'ials 

8 that would otlH'lwise b(' i])(~i]l('mt('d Ol' S('llt to a 

9 landfill. 

10 

11 teI'm b~' IlH1ll11fnetnrC'l's" llH'HllS the pro('-

12 L'ssing alld rl'Us\' of l'(~('~'('IHhl(' Ilwt(,l'ials ill it lIlHllll13 faetnrillg' Ill'()('('"" to jlI'Odll('(, 11\'\\' l'OlISllW('1' Hl1(1 (,OlU14 and pl'odllC'i.s HIH] pHd::ng'illg, illl']m]-

15 ing' USc' of imported l'('(',wtnbl(, lllll((orillls ill a lllall1l16 fad.l1l'illg pn)('('ss alld the of 1'C'('.I'(,.lablt, mai('-

17 l'i,ds fol' 1IS(, ill a 1ll<l1l11flll'tlll'illg ])]'(j('('ss, hut ('xellld18 ing' nn~' J'('('y('lab]e Illntl'l'i,l1 used fot' (lll~' PlIl'l)()S(' 

[9 otilel' than IlS(' b~' ,1 lWlll1l fadm'(']', \\']wthl'l' OJ' !lot 

20 SUdl llSPS 1I'(1ll1d ill otlH'l' (,Oll1\'XtS be ('ollsidel'('(l "]'('-

21 (',wlillg''', "diw]'"ioll", or "1\'('0\'('1')''', illl'lndillg' ilWill22 ('rHtioll, or for 11S(' in rm1dh('ds, :-ml'fl)('ing', Hud hlll(]-

23 fills ,1S altl'l'Ilai iw tinily ('O\'('l', 

f:IVHLC\061912\061912.061.xml (53028811) 

June 19,2012 (11 :38 a.m.) 
12 


81483.008

FIKMLIM 12IEANDCIRECYCLlNGIRD_OI X!.Discussion Draft I 

(()) HEClTL\BLE ~[ATEHl.\L.-,-'I'l](' t(,I'Ill "l'('('~'-

2 elabk material" means nlllllli1l1ll11, g'lnss, ])H1)('I" plns4 SEC. 4. AGENCY REVIEW OF DATA ON THE COLLECTION OF 

5 RECYCLABLE MATERIALS, RECOVERY RATES, 

6 DISPOSAL AVOIDED AND RESULTING ENERGY 

7 SAVINGS. 

10 ('ommltatioll with tile 

II l'etHry of C()]IlIlH't'l·(" rind. as n]JIH'Ojll'iHtc, with Staws, 1l111-

12 Ili('ipaiiti('s, m<lll\l['(letHl\'I'S, brand O\Y]H'!'S, l'l1vil'OllJlH'l1lal 

Jl]'OC'( 'SSOl'S, I'c(,O\,(,1')' fa14 eilit ies, a lHI ot/l('1' l'eic\'lmt stakeholders, shall g'athpl' and 

IS l'l'yj(,\\' infor!lla1 iOIl Oll tIl(' ('oll('dioll, handling', Pl'()(·pssing'. 

17 I('('lioll SYStl'lll;'; nnd the I'(,('O\'P!',\' llliltl1lfadnt'l'l's of s11ell 

19 I'(,POl't tlInt ilWll1d('s tlH' iufol'lllal ion ill sub20 sl'dion (Il). 

21 (1)) I\EPOHT (:mll'o:\E:\T",·-Tlw 1'l']lort 1llHkr s11b22 :-;('dioll (n) shnll illdude. to the ('xtput possihll'-

23 (1) tll\' 1011ml/2.'(' oj' l'l'(',\Tlnbll' mate'rial" that are 

24 d iWl'il'd 

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June 19.2012 (11:38 a.m.) 

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13 


81483.009

F:IKMJ ,1M J 21EANDCIRECYCUNGlRDJJ I XI,Uiscussion Draft] 

3 

4 

5 

t'\l)(' of mntel'in\ Hnd 

6 Illlttli('ipni ('olkdioll S,I'S((,III; 

8 disposl'd of in n hmdrm diredl,"l' lIfte], llse, bl'ok('1l 

11 dispos(,tl of ill II landfill, follo'Ying diY(,l'sioll, sOl'ting, 

14 ni('ipnl ('olledioll 

15 (()) the (OllIlHg'(' of ]'(>(',\'(']ahl(' matl'l'ials that 

16 gops to other i(\r>lltifiabk pm\ 11:WS; awl 

20 (,I'll" 0[' 1'('(',H'l<ihlp lllnt(,l'ial. 

22 ( 1) Th(' j'P]lOl't undc]' snilsed.ioll (a) slwll be 

23 based Oll informatioll IJI'oyidl'd volalltaril;.' pnn:mmt 

24 to all informatioll ('oll('('tion 

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,'uno 19, 2012 (11:38 a.m) 

(53028811) 

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14 


81483.010

1'lKMLIM J 1IE;\~[)CIRECYCLlNGIRD_()I.X~Discussion Draftl 

pnbli;.;jwd g'OY('I'l111H'llt ('!lilti('s <lnd tnldl' ass()('ia2 liolls. 

4 entities pnl':mant to an iufol'matioll ('olh,etioll 1'('-

6 matio1l, 

7 (:3) To tIll' ('sh'ut pnH'tieahl(', informatioll pJ'O9 t iOll ('Unt,(,ted fl'Olll t nlll(' Hss()('iatio!ls. 

10 SEC, 5, LIMITATION. 

11 :'\ot11lng' ill tltis ;\et shall be intl'rpl'etl'd 10 {ll'oyide 

13 l'etalT • of COlllllH'J'('(' witll all\' •• nnthorit\, to l'(,o'nlat(' 'l""' l'('(~\'- • 

15 ('Olltl'llt, Ol' 1'('('yeiil1g' eolil'd.iOll ])I'Og'l'<llI1S, Ol' to spt lllill17 SEC. 6. AUTHORIZATION OF APPROPRIATIONS. 

18 Thl'l'l' is lmtllOrizl'd to Ill' HPPI'Opl'inll'(l to tIl(' Ellyi19 j'Ollllll'lltal 1'1'ojedioll ~\g'('ll("~' to eHIT,\' 0111 tllis ;\('t 

20 $-WO,OOO for (',\('11 of fi;.;('al ~TH],S ~01;1 llmmg'l1 :201;'), to 

21 1'('11)(1 ill <lynilnhil' l1ntil l'xp<']l(kd. 

LWHlCI0619121061912.061.xml 

June 19.2012 (11:38 a.m.) 

(53028811) 
15 


81483.011

11 :2TlI C():\(mESS 

1 ,,'I' SE""lOX H.R.2997 

To (1ll\1)!ld till' (\Hllpn'lH'llsi\"(' l~lIYin)llJlwllt<ll H{,:-;POllSiy(' (iollllH'lls;ltioH nut! 

Liability ,\,,[ "I' 1 ~)I'() ("Sup,'rfHlHI") to j)]'m'ide [Iwt 11l1lmm' is nol 

('oll~idl'l't'd n IlHznrdtHlS :-mhst,!ll('(' or pollUtlllll OJ' (,Oliti:HlliIlHlIt, uIlder 

111111 .\"1 'Illd for oillPI' PII]']lOSPS, 

SEI'TE,111I1':1( :!1, :!()ll 

:Ill', L()~(; (1'01' hilllSl'if, ,\11'. Ll'ETI,!';,IIEYEU, :\Ir, .\KI~, :III's, 1'~,11Enf;,)~, :III's, 

J LII(TZLEI{, :II]', PI';,IH( 'I';, :lIr, (',IHTEH, :\1]', S,IIITII of :\('I)]'IlSkn, :III', 

I I nZI';~(;.1 of :\Ii('lli~ml, :l1r. ::;L\IPf;(\~, :Ill', ]XLI';, :ljr, PETlm,;()~, jI I', 

11.IHHI";, jll'. TEIW\, awl jl]', TJI()~II'''()~ of Pl'1I1IS,\'I\'HlIill) illtl'odu(,pd 

till,' follo\\-illg' hill; \"bieb WHS J'(\f'pl'l'ed to the (~olllmitt('r' 011 EW'l'g:\' Hnd 

COllillWI'('('. and ill addition to t.lw. ('olllllliu('(, Oil Tnlllsl'o]'tntioll alld III' 

f]'nsln1('lul'(" 1'01' 11 pl'l'iod to 1)(' suhs"qIH'nliy ,\t>tel'mill,'d h,v tbp 8pl'1Ikel', 

;11 ('IIPh (,1IS,' fol' l'oll;;id"nltioll oJ' ;';llvb 1)]'O\';S;OIlS liS Llil \y;thill the juris· 

dil'fioll of tli" "Ollllllith'l' ('01l('(']'1I('d 

A BILL 

fro HUH'IHl tlH~ COlllprdll'llsiyl' Em'il'Ollmelltal Hespollsin' 

('Olllpl'llsatioll and LinLility i\et of 1 DKO ("~lll)('l'fnlld") 

to pl'oyid(' that lllilll1l1'l' is not l'OllSidpl'l'd H linZlll'dollS 

slliJstmH'l' 01' polll1tant OJ' ('olltallliwlllt lllHh'l' that .\d, 

Hnd for oiller jHlI']lOS('S, 

Be il cllucted by the ,",'ellute and HOllse (!{Represl!lIla2 lin's (({the l 'llilcd Stliles (!lilrIlCl'ica in 
16 


81483.012

SECTION 1. SHORT TITLE. 

2 This ;\('t llW~' be ('i[('d as "Th(' ~llp(,l'fllJl(1 COllllllOIl 

3 Sc'IlS\' ~\et", 

4 SEC. 2. ANIMAL WASTE. 

5 (a) "\:\IK\'Il:llE;'\T (W 8rpEH}'r;,\D,-Tith~ In of the' 

6 ('OlllIH'C'lll'llSivp Em'il'ollllll'Il!,,1 H(,SPOllSl' ('0111pensa1ioll 

7 and Liilbilit~, A(·t of Hl/'iO (-I-~ 1J,8.c, 9(jOl) is cWH'lHkd 

8 by Hdding the i'ollowillg ucw s(,('tion at 1 he (,lld thereof: 

9 "SEC. 312. EXCEPTION FOR MANURE. 

]0 "(a) 1;'\ OE;'\EHAL,-l'poll tIl(' <lnt<.' of ('llHetmellt of 

11 tltis S('('tiOll, mall11l'(~ shall 110t be i11('I11d('<I ill the lllc,millg 

12 or 'hnznrdoHs snbstane(" llll<iPI' spdiOll 101 (14) of this "\('t 

13 OJ' 'pollutant Ol' (,Ollt <llllimmt' ll11dp]' sed ion 101 (:3:3) 0[' 

14 this .\\'1, 

15 "(b) ELL\lL\,ATl():'\ OF P.\PE](\Y()HI~ HE(wniE16 :I[E:'\Ts.-'I'lw ('WH'tUll'llt of this s('('tioll shall not 1)(' eOIl17 S1T11('d to impos(' all," linhility lllHkr pl'ovisiollS of tIll' 

18 I~IlWl'g('lW.'l' I'lnlllling HlHl Community Hig'ht-to-KIlO\\' Ad 

19 or 1 !l8li fo]' lllaJ1U1'(,. 

20 "(') ~() EFF'ECT 0;'\ O'rIIEH E",'fHO:,\:lIE;,\Tc\L 

21 L,\\\'.-.'\otliillg' ill this s\'di011 shall affeet till' Hpplieability 

22 of' Hll,l' otiwl' Pllyil'OlllllnJtal stntntl' as it I'P1at('s to the <Jefi23 Iliiioll of maJl1ln', or the' j'('SP011sihilities or iinhiliti('s of allY 

24 perSOll ],egarding', til(; trpntl11cllt, storHge, OJ' dispOSH1 of 

25 llWIl111'(', 

.UR 2997 IH 
17 


81483.013

3 ('( 1) dig('stiy(' emissions, {'('('PS, m'l]Je, llH'iI (\nll 

4 ot ]ll'l' ('X(' 1'('[1 Wllt fl'Onl lin's! od, (HS defi lied h)' 7 

5 C.F.R 

6 allY assot'inte(] b('(lding, ('ompost, raw llla7 terinls or othcl' materials eOl1lmingkd ,yith sHell ex8 C'l't'l1ll'llj from lin'sio('k (as dd'iJ1('d h~' 7 C. P. H. 

10 ) nll,\' Pl'()(,l'SS wntl'I' (lss()C'inti'd 'with the 

11 it (,illS ['('['en'c(] to in 1 Hll'ngTltph (l) or (2); and 

12 allY h.\VI'odllets, ('ollstitul'lltS, 0[' 8nb13 st1l11('"S eontailll'd in, ol'igimliiug from, 01' ('missions 

14 ['('1ati1lg to tht' itcllls des(,l'iil('d ill ll<ll'llgnq)h (J), (2), 

15 OJ' (;5),". 

16 (h) .\;\IE:\mm:\T OF f·t\HA.-Sn'tion >104(a)(4) of 

17 tl](' !:-\np(,J'fuud ,\llH'IHlllll'llts aIHl Heanthm'izatioll "\et of 

18 l~)R(i (Pnlllie Lml' Dn-4~)~); 100 !:-\tut. j(ii);"i) is HIl1('lHkd 

19 by adding tlw ['ollmying at the end !I l(']'('of: "'I'll(' llotifieH20 tion l'l'<]llin'ltl('nts ullder this snbs('('tioll silullllot app17 to 

23 tioll ,Illd LiHllility "\et of 1 !lRO),", 

.HR 2997 III 
18 

OPENING STATEMENT OF HON. GENE GREEN, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GREEN. Mr. Chairman, I want to thank you for holding this 

hearing today, and I would like to welcome our witnesses and particularly our fellow Member from Missouri, Congressman Long. 

Thank you for coming. 

Today, we are here to discuss two different bills—a Discussion 

Draft entitled ‘‘Increasing Manufacturing Competitiveness through 

Improved Recycling Act of 2012’’ offered by our colleague on our 

committee, Mr. Sullivan from Oklahoma; and H.R. 2997, the 

Superfund Common Sense Act, offered by Congressman Long from 

Missouri. While I appreciate your willingness to testify today, I 

have some concerns about your bill which would exempt manure 

from cleanup injunction and reporting authorities available under 

the Comprehensive Environmental Response, Compensation, and 

Liability Act of 1980, also referred as Superfund; and the Emergency Planning and Community Right-to-Know Act of 1986. 

The Superfund Act, as amended by amendments over the years, 

authorizes Federal cleanup of releases of hazardous substances, imposes liability for cleanup, and provides a restoration and replacement of natural resources affected by the release. I have two 

Superfund sites in our district and so I can appreciate the necessity 

of the program. 

While I share and appreciate your concern that small farms not 

be required to file reports on animal waste, I think you need to recognize that exempting concentrated animal feeding operations, also 

known as CAFOs, is highly controversial and could have serious 

ramifications for communities across our country should contamination occur at a large agribusiness facility. CAFOs store very 

large amounts of animal waste and contrary facilities which does 

not occur naturally at most farms. That is why the EPA currently 

differentiates between the two and the small farms are exempted. 

Studies have shown that these CAFOs emit large amounts of 

hazardous ammonia and hydrogen sulfide, which have been linked 

to health concerns including chronic respiratory, neurological, and 

other problems. That is why the law requires reporting because 

emergency response removal and hazardous release controls depend on the accurate information in order to protect public health 

and the environment. H.R. 2997 would eliminate both the notification and reporting requirements for all releases associated with 

manure, including ammonia and hydrogen sulfide air releases. 

Reporting aside, the bill also prevents EPA from using CERCLA 

to clean up hazardous substance releases from manure or issuing 

an order to a facility to clean up releases of hazardous substances 

resulting from manure components, meaning that the bill would exempt large agribusiness from Federal liability of any natural resource damage as it may result from damage and spills. 

I mentioned before I have concerns about small farms, and I 

know our committee is interested in recycling on our second bill. 

Obviously, a lot of that could be recycled in very beneficial use. But 

my concern is H.R. 2997 with the cost of cleanup, damage by that 

hazardous substance, it is the responsibility of the ratepayers and 

local communities. 

19 

The second bill we are looking at today is Increasing Manufacturing Competitiveness through Improved Recycling Act. I agree 

that it is important for us to understand where recyclables collected through recycling programs end up. Better information leads 

to more efficient recycling that maximizes environmental gain and 

material efficiency and makes sense for our businesses. However, 

I am concerned that by making a survey voluntary, the participation would not lead to the type of data that we are aiming for. 

I am also struggling to understand why States or trade associations cannot do the same type of voluntary survey. Given our budget issues, I think we should ensure that data could not be obtained 

through existing reporting regiments. 

With that, I look forward to the testimony of our witnesses, Mr. 

Chairman, and thank you for calling the hearing. 

Mr. SHIMKUS. I thank my friend. And I would like to recognize 

the chairman of the full committee, Mr. Upton, for 5 minutes. 

OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. UPTON. Well, thank you, Mr. Chairman. 

Today, we are going to hear testimony on two bills—Mr. Sullivan’s Discussion Draft on recycling and Mr. Long’s bill clarifying 

that manure is not defined as a hazardous substance under 

CERCLA. 

Monday, I visited a paper recycling plant in Michigan employing 

hundreds of folks who make 100 percent recycled paperboard. In 

my view, these private sector innovators are the real green jobs 

that we need to be promoting. The folks at this facility in Kalamazoo are concerned about getting access to high quality paper fibers that they can recycle into new paper products, whether it be 

cartons, cereal boxes, or other types of packaging. They are frustrated that more than 40 percent of good paper fiber goes overseas 

or into a landfill. They are not asking for Federal laws mandating 

recycling, but they do feel that better information is needed both 

to help the American public understand recycling and to help the 

recycling community gain access to the types and quantities of 

feedstock that it needs to be competitive. 

The second bill that we are going to consider is H.R. 2997, the 

Superfund Common Sense Act, by Mr. Long. This legislation will 

remove a lot of anxiety and bureaucratic compliance cost for folks 

who operate animal feeding operations. The bill would do two 

things. First, it clarifies that manure is not included in CERCLA 

as a hazardous substance or a pollutant or contaminant. This alleviates farmer and rancher worries over possible CERCLA exposure 

for manure, but it preserves claims under a host of other environmental laws, from the Clean Water Act and Clean Air Act to various State and local ordinances. 

Second, the bill eliminates some red-tape paperwork reporting 

concerns. So Mr. Chairman, we all expect animal feeding operations to operate responsibly and with respect for their neighbors 

and the law. But today we ask is it more important to apply lots 

of laws to one operation or just the right ones? 

20 

So to our witnesses I say thanks for coming. I yield back to other 

Members that would like to speak. Mr. Harper? Mr. Gardner? Mr. 

Gardner. 

[The prepared statement of Mr. Upton follows:] 

21 


81483.014

Opening Statement of Chairman Fred Upton 

Suhcommittee on Environment and the Economy 

Hearing on The Superfund Common Sense Act and The Increasing 

Manufacturing Competitiveness Through Improved Recycling Act 

June 27, 2012 

(As Prepared for Delivery) 

Today we'll hear testimony on two bills. Mr. Sullivan's Discussion Draft on recycling and Mr. 

Long's bill clarifying that manure is not defined as a hazardous substance under the 

Comprehensive Environmental Response, Compensation, and Liability Acl, or CERCLA. 

The other day 1 visited a paper recycling plant, a terrific facility in my district employing a 

couple hundred folks who make 100 percent recycled paperboard. In my view, these private 

sector innovators arc the rcal green jobs we need to be promoting. 

The folks at this plant are concerned about getting access to high quality paper fibers that they 

can recycle into new paper prodncts, whether cartons, cereal boxes, or other types of packaging. 

They arc lhlstratcd that more than 40 percent of good paper fiber goes overseas or into a landfill. 

They arc not asking for federal laws mandating recycling, but they do feel better information is 

needed both to help the American public understand recycling and to help the recycling 

community gain access to the types and quantities of feedstock they need to be competitive. 

The second bill we will consider today is H.R. 2997, The Superfimd Common Sense Act, by Mr. 

Long. H.R. 2997 will remove a lot of anxiety and bureaucratic compliance cost for people who 

operate animal feeding operatiol1s. 

The bill would do two things. First, it would clarify that manure is not included in the CERCLA 

detlnitiol1s of "hazardous substance" or "pollutant or contaminant." 

This alleviates farmer and rancher worries over possible CERCLA exposure for manure, but it 

preserves claims under a host of other environmental laws, from the Clean Water Act and Clean 

Air Act to various state and local ordinances. 

Second, the bill eliminates some red-tape paperwork reporting concerns. Mr. Chairman, we all 

expect animal feeding operations to operate responsibly and with respect for their neighbors and 

th" law. But today we ask: is it more important to apply lots of laws to one operation or just the 

right ones? 

To all our witnesses, thank you for coming. We look forward to your testimony. 
22 

OPENING STATEMENT OF HON. CORY GARDNER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO 

Mr. GARDNER. Thank you, Chairman Upton, for the opportunity, 

for yielding time. And thank you, Chairman Shimkus and Ranking 

Member Green as well for convening this hearing on two very important pieces of legislation which will help our agricultural community improve energy efficiency and increase international competitiveness. 

The first bill that we have talked about—Increasing Manufacturing Competitiveness through Improved Recycling Act—directs 

the EPA and stakeholders to take steps to improve data collection 

related to the recovery of recyclable material and review ways to 

increase the collection of recyclable materials. EPA Franklin Associates report—we found out that the State of Colorado generates 

approximately 157,000 tons of glass and only 32,000 tons, or 21 

percent, is recycled, making a big difference. 

One of my constituents, an employer that has over 200 men and 

women working at the facility, Owens-Illinois, is very interested in 

the issues of recycling, and as I toured their facility learning about 

what it takes to make their glass product, the important role that 

recycling has within that industry, and that is why I think this legislation could be helpful. 

The second bill we are considering today will provide needed certainty to our agricultural community and help protect the livelihood of farmers and ranchers throughout the United States. My 

district is the 11th largest agricultural producing district in Congress. Many of our producers use concentrated animal feeding operations, or CAFOs, and CERCLA and the Emergency Planning and 

Community Right-to-Know Act could soon be used to subject manure to redundant requirements or stringent regulations. 

This H.R. 2997 would exclude animal manure from the definition 

of hazardous substance. In a letter that we received from the Colorado Livestock Association, they believe that H.R. 2997 ‘‘will reduce 

unproductive expenditures by individuals engaged in producing the 

Nation’s supplies of protein and milk products without in any way 

compromising the health and safety of the public. CAFOs are used 

throughout Colorado and this legislation is essential to protecting 

our producers from undue regulations that could significantly hurt 

their business. 

A thank you to our colleague from Missouri, and certainly thank 

you, Chairman, and I yield back my time. 

Mr. SHIMKUS. The time has been yielded back. 

The chair now recognizes the ranking member of the full committee, Mr. Waxman, for 5 minutes. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you very much, Mr. Chairman. 

Today, we will hear testimony on a bill called the Superfund 

Common Sense Act. While my Republican colleagues will talk 

about the small family farmer with a single cow grazing out in the 

pasture, they will warn of EPA rushing through the farm gate, callVerDate Aug 31 2005 14:56 Jun 19, 2013 Jkt 037690 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 F:\11F7AA~1\112-15~1 WAYNE
23 

ing a cow patty hazardous and placing costly and burdensome requirements on an innocent, freckle-faced farm boy. And they will 

use this imagery to argue that farmers need to be protected from 

Superfund and the EPA. 

We have all heard of what is called a Trojan Horse. I call this 

a Trojan Cow. There is one big problem with the Republican narrative—it is completely made up. In reality, this legislation is about 

exempting giant agribusinesses from liability if they pollute the 

land and groundwater. 

Time after time, this committee has put the interests of big corporations and their billionaire owners over the interests of the 

struggling middle class. 

Many farming operations comply with the law. But there are 

times when some do not. And when that happens, liability under 

Superfund is essential. That is common sense. 

An example is what happened in Waco, Texas, where poultry factory farms contaminated the sole source of drinking water. The city 

successfully made a claim under Superfund for reimbursement for 

the cost of cleaning up the phosphorous pollution. Without Superfund, the local taxpayers would have been defenseless. 

Another example occurred in Tulsa, Oklahoma, which recovered 

funds from Tyson Foods under Superfund when poultry operations 

there contaminated the city’s water. 

That is why I am so worried about this piece of legislation, despite its very nice name, because it is being promoted under false 

pretenses. We have already voted over 250 times on the House 

Floor to roll back environmental protections. And if this bill makes 

it to the floor, it will only add to this total. 

We have considered a bill that would have blocked President 

Obama’s historic tailpipe standards that will save consumers thousands of dollars and dramatically reduce our dependence on foreign 

oil. The false pretense for that bill was that money-saving fuel efficiency standards are an energy tax. 

We passed a bill to allow mining operations like the one in Libby, 

Montana, to spew cancer-causing particles into neighboring communities. Well, the rationale for that bill was that we needed to 

prevent EPA from regulating farm dust even though EPA told us 

they have no intention of regulating farm dust. 

Last week, the House passed legislation that included the Latta 

amendment, which would cut the heart out of the Clean Air Act by 

gutting the Act’s health-based standards. The completely unrelated 

argument for that bill was that we needed to study rules that 

might be proposed on refineries. 

Well, House Republicans have voted to nullify rules to cut mercury pollution from waste incinerators, industrial boilers, and cement kilns. The argument was that we just need to give EPA more 

time to get the rules right. 

Mr. Chairman, I have said this before and I repeat it again: This 

is the most anti-environment House of Representatives in the history of the country. And today, this bill is one more effort to make 

the country safe for pollution and I strongly oppose the bill. 

Before I yield back, however, I would like to note that we are 

also examining legislation relating to recycling today. While this 

24 

bill appears likely to accomplish very little, I look forward to hearing testimony about it. 

Superfund Common Sense, well, we are all for Superfund and 

common sense, but it is not common sense to put shackles on 

Superfund and let polluters cause serious consequences to the taxpayers and the middle-class people living in the communities nearby. 

I yield back my time. 

Mr. SHIMKUS. The gentleman yields back his time. 

Now, the chair recognizes our own freckle-faced farm boy from 

the State of Missouri. Mr. Long, you are recognized for 5 minutes. 

STATEMENT OF HON. BILLY LONG, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF MISSOURI 

Mr. LONG. Thank you. 

First off, I would like to thank you, Chairman Shimkus and 

Ranking Member Green and all of the subcommittee members, for 

allowing me to testify this morning. 

Last year, I introduced a bill which would exempt livestock operations from the Comprehensive Environmental Response, Compensation, and Liability Act—or CERCLA—regulation. The bill, 

H.R. 2997, or the Superfund Common Sense Act, would also exempt livestock operations from Emergency Planning and Community Right-to-Know Act, the EPCRA, reporting requirements. 

Livestock producers, along with other small businesses, face increasing regulatory uncertainty, much of it stemming from potential or proposed Environmental Protection Agency rules. The Nation’s livestock producers or agricultural industry as a whole cannot afford to comply with unnecessary regulations. 

The CERCLA law, which we know created the Superfund, was 

enacted in Congress in 1980 because of the Love Canal incident. 

The law was never meant to regulate livestock manure, but its activists may use ambiguities in the law to create new livestock operation regulations. My bill clarifies that the reporting requirements 

under CERCLA and EPCRA will not apply to animal manure or its 

emissions. It does not make sense to lump tens of thousands of 

farms and livestock producers under the same severe liability provisions that apply to nearly 1,300 Federal Superfund toxic waste 

sites. My bill will provide more certainty for producers and more 

common sense to these laws. 

If the EPA does not choose to exempt cattle operations from released reporting obligations, the operations may be required to file 

daily reports with Federal, State, and local emergency responders. 

Additionally, measuring ammonia from open air beef feedlots is impractical since there is no pipe or other way to measure ammonia 

emissions directly. Because ammonia is dispersed in the air before 

measurement, the wind speed and direction, air pressure, and temperature all affect emissions. Measuring the emission depends on 

capturing the whole ‘‘cloud’’ or air sample in a specific time and 

space. This would require all kinds of instruments upwind, downwind from the source, much like a complete set of meteorological 

instruments measuring wind speed, direction, pressure, and the 

like. Since these instruments could only measure concentrations at 

relatively few points in the air space of varying size and shape over 

25 

short periods of time, large errors are likely and data would be unreliable. These are supposed to be livestock operations, not small 

weather stations. 

Annual continuous release reports may be a continued option for 

large operations, but because emissions from open air beef cattle 

operations also vary depending on the climate, the feed, the weather, the age of cattle, and many other variables, there is no guarantee the reports would be useful since the emissions are obviously 

not continuous or stable. 

A continuous release by the law’s definition ‘‘a release that occurs without interruption or abatement or that is routine, anticipated, and intermittent and incidental to normal operations or 

treatment processes.’’ The release must also be ‘‘stable in quantity 

and rate,’’ which means that it is ‘‘predictable and regular in the 

amount and rate of emission.’’ 

Finally, neither ammonia nor hydrogen sulfide is a regulated 

hazardous air pollutant under the Clean Air Act. 

I introduced my bill in September of 2011. When the EPA was 

asked for comment, an EPA spokesman stated the following on October the 20th, 2011, in the Energy and Environment Daily article—‘‘this one joins the growing list of myths being perpetuated 

about the EPA rules.’’ And then she added, ‘‘it is unfortunate that 

time is being spent on solving a perceived problem that does not 

exist.’’ I will note for the record there was no mention of a freckledface farm boy, but the intent was there. 

After they denied it, the next day’s Federal Register was printed. 

The EPA is currently in the process of developing a rulemaking to 

amend reporting requirements for livestock operations on air emissions under CERCLA Section 103 and EPCRA Section 304. 

Also, on November 8, 2011, Congressional Research Service report stated that the EPA anticipates it will propose a new or revised rule regulating livestock waste in 2012. 

Mr. Chairman, I would also like to mention that the United 

States Department of Agriculture has gotten so out of control with 

regulations. I have had constituents of mine threatened with large 

fines and confiscation of property because their small rabbit breeding operation was considered illegal. This kind of regulatory overreach does not reflect self-governance, and come to think of it, 

there was a small, freckle-faced boy involved in that case. This 

kind of regulatory overreach does not reflect self-governance, which 

is a fundamental principle of our Nation. 

Where does the individual citizen go to vote out an abusive regulator or overbearing bureaucrat? Where is that ballot box? It is 

time for us, the United States Congress, to reclaim much of the authority we have surrendered to the Executive Branch bureaucracy. 

The Federal Government’s job is not to stifle economic growth and 

intimidate the American people. The constituents I mentioned earlier only wanted to breed rabbits and be left alone in peace, but 

they instead were punished by an expensive and time-consuming 

process brought on by ridiculous regulations. I would mention that 

they had ceased raising rabbits for a few years before they brought 

this charge, which was also ridiculous. 

I would also like to point out what happened in Illinois last August. At a town hall meeting where President Obama held in AtVerDate Aug 31 2005 14:56 Jun 19, 2013 Jkt 037690 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 F:\11F7AA~1\112-15~1 WAYNE
26 

kinson, Illinois, a local corn and soybean farmer asked the President about more possible EPA regulations covering dust, noise, and 

water runoff. The President said, ‘‘the folks in Washington like to 

get all ginned up’’ about things that aren’t necessarily happening. 

Then, he instructed the gentleman to contact the USDA. Well, one 

reporter followed this direction and called the USDA. After several 

phone calls and referrals to various agencies, including the Illinois 

Department of Agriculture and the Illinois Farm Bureau, an answer was not found. 

I again want to thank you, Chairman Shimkus and Ranking 

Member Green, along with members of the subcommittee for allowing me to testify today. I look forward to working with you on this 

commonsense solution. 

[The prepared statement of Mr. Long follows:] 

27 


81483.015

Testimony of Congressman Billy Long (MO-07) 

Before the House Energy and Commerce 

Subcommittee on Environment and the Economy 

Wednesday June 27, 2012 

Legislative Hearing on "The Superfund Common Sense Aet" and "The Increasing 

Mannfacturing Competitiveness Throngh Improved Recvcling Act of 2012" 

First off I would like to thank Chairman Shimkus, and Ranking Member Green and 

all of the Subcommittee Members for allowing me to testify this morning. 

Last year I introduced a bill which would exempt livestock operations from 

Comprehensive Environmental Response, Compensation, and Liability Act, or 

CERCLA, regulation. The bill, HR 2997, or the Superfund Common Sense Act, 

would also exempt livestock operations from Emergency Planning and Community 

Right-to-Know Act (EPCRA) reporting requirements. 

Livestock producers, along with other small businesses, face increasing regulatory 

uncertainty, much of it stemming from potential or proposed Environmental 

Protection Agency (EPA) rules. Our nation's livestock producers and our 

agricultural industry as a whole cannot afford to comply with unnecessary 

regulations. 

The CERCLA law, which as we know created the Superfund, was enacted by 

Congress in 1980 because of the Love Canal incident. The law was never meant to 

regulate livestock manure, but activists may use ambiguities in the law to create 

new livestock operation regulations. My bill clarities that the reporting 

requirements under CERCLA and EPCRA will not apply to animal manure or its 

emissions. It docs not make sense to lump tens of thousands of farms and 

livestock producers under the same severe liability provisions that apply to the 

nearly 1,300 federal Superfund toxic waste sites. My bill will provide more 

certainty for producers and more common sensc to these laws. 

If EP A does not choose to exempt cattle operations from release reporting 

obligations, the operations may be rcquired to file a daily report with federal, state 

and local emergency responders. Additionally, measuring ammonia from open air 

bcer cattle feedlots is impractical since there is no pipe or other way to measure 

ammonia emissions directly. Because ammonia is dispersed in the air before 

measurement, the wind speed and direction, air pressure and temperature all affect 
28 


81483.016

the emission. Measuring this emission depends on capturing the whole "cloud" or 

air sample in a specific time and space. This would require all kinds of 

instruments upwind and downwind ft'om the source, much like a complete set of 

meteorological instruments measuring wind speed, direction, pressure and the like. 

Since these instruments could only measure concentrations at relatively few points 

in an air space of varying size and shape over short periods of time, large errors are 

likely and the data would be unreliable. These are supposed to be livestock 

operations, not small weather stations. 

Annual continuous release reports may be an option, but because emissions from 

open air beef cattle operations also vary widely depending on climate, feed, 

weather, age of cattle, and many other variables, there is no guarantee the reports 

would be useful since the emissions are obviously not continuous or stable. A 

continuous release is by the law's definition "a release that occurs without 

interruption or abatement or that is routine. anticipated, and intermittent and 

incidental to normal operations or treatment processes." The release must also be 

"stable in quantity and rate," which means that it is "predictable and regular in the 

amount and rate of emission." 

Finally, neither ammonia nor hydrogen sulfIde is a regulated hazardous air 

pollutant under the Clean Air Act. 

I introduced my bill in September 01'2011. When the EPA was asked tt1f 

comment, an EPA spokeswoman stated the following in an October 20,2011 

Energy and Environment Daily article - "This one joins the growing list of myths 

being perpetuated about EPA rules." She added - "It's unfOliunate that time is 

being spent on solving a perceived problem that doesn't exist." 

In the next day's Federal Register, the following was printed - EPA is currently in 

the process of developing a rulemaking to amend reporting requirements for 

livestock operations on air emissions under the Comprehensive Environmental 

Response, Compensation, and Liability Aet (CERCLA) section 103 and 

(Emergency Planning & Community Right-to-Know Act) EPCRA section 304. 

A Iso, a November 8, 2011 Congressional Research Service report stated that the 

EPA anticipates it will propose a new or revised rule regulating livestock waste in 

2012. 

Mr. Chairman, I would also like to mention that the United States Department of 

Agriculture has also gotten out of control with regulations. I have had constituents 
29 


81483.017

of mine threatened with large fines and confiscation of property because their 

small rabbit breeding operation was considered illegal. This kind of regulatory 

overreach does not refleet self-governance, which is a fundamental principle of our 

nation. Where does the individual citizen go to vote out an abusive regulator or 

overbearing bureaucrat? Where is that ballot box? It is time for us, the United 

States Congress, to reclaim much of the authority we have surrendered to the 

Executive Branch bureaucracy. The Federal Government's job is not to stifle 

eeonomic growth and intimidate the American people. The constituents I 

mentioned earlier only wanted to breed rabbits and be left alone in peace, but 

instead they were punished by an expensive and time consuming-process brought 

on by ridieulous regulations. 

I would also like to point out what happened in Illinois last August. At a town hall 

meeting President Obama held in Atkinson, Illinois, a local corn and soybean 

farmer asked the President about more possible EPA regulations covering dust, 

noise and water runoff. The President said that "folks in Washington like to get all 

ginned up" about things that aren't necessarily happening. He then instructed the 

gentleman to contact the USDA. One reporter followed this direction and called 

the USDA. After several phone calls and referrals to various ageneies, including 

the Illinois Department of Agrieulture and the Illinois Farm Bureau, an answer was 

not found. 

I again want to thank you, Chairman Shimkus and Ranking Member Green, along 

with Members oCthe Subcommittee for allowing me to testify today. I look 

forward to working with you on this common-sense solution. 
30 

Mr. SHIMKUS. Thank you for joining us and it is our tradition not 

to take questions. So thanks and we will now—Billy—— 

Mr. WAXMAN. May I ask a question? 

Mr. SHIMKUS. Billy? Without objection, the ranking member of 

the full committee will be recognized for—how much time do you 

want? 

Mr. WAXMAN. Let us try 5 minutes and I will try not to go that 

long. 

Mr. SHIMKUS. OK, for 5 minutes. 

Mr. WAXMAN. I thank you. 

Mr. SHIMKUS. Without objection, so ordered. 

Mr. WAXMAN. I thank you for your explanation of the bill and 

willingness to answer my questions. 

Your statement says that the bill clarifies that ‘‘the reporting requirements under Superfund and EPCRA will not apply to animal 

manure or its emissions.’’ That is what you are trying to accomplish. Is this the sole intent of the bill to exempt manure and its 

emissions from the reporting requirements under Superfund and 

EPCRA? 

Mr. LONG. The intent of the bill is to stop trying to use something that was created for Times Beach in Missouri or Love Canal, 

an actual toxic waste Superfund Cleanup Act for manure. 

Mr. WAXMAN. OK. 

Mr. LONG. That is the intent of the bill. 

Mr. WAXMAN. Now, EPA is going to testify that the impact will 

go far beyond the reporting requirement and it blocks authority to 

clean up contaminated sites, prevent further contamination 

through injunction, recover compensation from responsible parties 

for cleanup activities. Now, this would severely undermine the 

principle of the polluter should pay to clean up their pollution. Instead, the cost of cleanup would be shifted to the taxpayers. Is it 

your intent in this legislation to shield polluters from liability and 

shift the cost of cleanup to taxpayers? 

Mr. LONG. Absolutely not, but I want the EPA to use the rules 

that are on their books now for such ventures. I do not want them 

to get off into this la-la land of trying to use a Superfund that was 

for Times Beach and Love Canal for cow manure. 

Mr. WAXMAN. OK. And then one last question, would you support 

redrafting the language in your bill to ensure that the polluterpays principle is upheld and that the cleanup costs are not shifted 

to innocent taxpayers? 

Mr. LONG. I will have to get back to you on that, which I will 

do. 

Mr. WAXMAN. But you want to accomplish that goal? 

Mr. LONG. I will get back to you on it, yes. 

Mr. WAXMAN. Thank you very much. I appreciate your answers. 

Mr. SHIMKUS. And I thank you, my colleague. And Billy, if you 

would just wait. I will recognize myself for a minute and a half 

without objection. 

Things we want to continue to highlight is the Clean Water Act, 

Section 311(f), authorizes recovery of costs incurred pursuant to 

hazardous substance mitigation. Requirements under Section 

311(c) of the Clean Water Act. Section 3007, the Solid Waste Disposal Act, authorizes the EPA to obtain information or inspect faVerDate Aug 31 2005 14:56 Jun 19, 2013 Jkt 037690 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 F:\11F7AA~1\112-15~1 WAYNE
31 

cilities where hazardous waste had been generated or stored, disposed, and/or transported. And then Section 7002 of the Solid 

Waste Disposal Act authorizes citizen suits against any person or 

the Federal Government to enforce solid or hazardous waste laws. 

Section 7003 of the Solid Waste Disposal Act gives EPA authority 

to address imminent hazards. 

So the point being—and I think part of my colleagues coming forward is a set of regulations that you can follow, not piling on. And 

this is a legislative hearing. I appreciate my colleague from California raising the question and I thank my colleague from Missouri 

for joining us. 

And with that I will dismiss this and call the second panel. 

Mr. GREEN. Mr. Chairman, I just want you to know for public information I told our colleague that I wouldn’t ask him any questions about the bill. 

Mr. SHIMKUS. And now I would like to welcome the Honorable 

Mathy Stanislaus, Assistant Administrator, Office of Solid Waste 

and Emergency Response with the United States Environmental 

Protection Agency. He has been here before. Thank you for coming 

back. Sir, your full statement is in the record and you are recognized for 5 minutes. 

STATEMENT OF MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY 

Mr. STANISLAUS. Mr. Chairman, Ranking Member Green, and 

members of the subcommittee, I am Mathy Stanislaus, Assistant 

Administrator for EPA’s Office of Solid Waste and Emergency Response. Thank you for the opportunity to testify today on H.R. 

2997, which would amend the Comprehensive Environmental Response, Compensation, and Liability Act, otherwise known as 

CERCLA; and on a legislative proposal regarding recycling data 

collection and a report to Congress, the Increasing Manufacturing 

Competitiveness through Improved Recycling Act of 2012. 

Regarding H.R. 2997 and the issue of air emissions from animal 

waste, EPA in December 2008 issued a final rule referred to as 

CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste at Farms. The 

exemption became effective on January 20, 2009, and exempts 

farms from reporting under CERCLA Section 102. The final rule 

also exempts farms that release hazardous substances from animal 

waste to the air from reporting under EPCRA Section 304 if they 

are stable or confine fewer than the number of animals to be considered under large concentrated animal feeding operation thresholds as defined in the Clean Water Act regulations. 

Let me be clear. EPA has never designated manure as a hazardous substance, nor has the EPA ever designated a farm a 

Superfund site and has no plans to do so. We believe EPA’s 2008 

final rule has addressed concerns raised by the farm sector related 

to air release reporting under CERCLA and EPCRA without removing important CERCLA response authorities. While we do not 

consider manure a hazardous substance, there are substances associated with manure such as ammonia and hydrogen sulfide that 

32 

are by definition hazardous substances and can threaten public 

health and the environment. 

The effect of H.R. 2997 would be to prevent the EPA from using 

CERCLA-response authorities to respond to releases to the environment when the manure is the source of those hazardous substances even if the release, for instance, such as the failure of a 

large manure waste lagoon presents a substantial danger to the 

public health and the environment. 

It would also prevent the Agency from issuing CERCLA abatement orders to require immediate response to damaging releases 

that could threaten drinking water sources, as well as residents. 

Therefore, we have concerns with the broad impacts of this bill. 

Now turning to the Increasing Manufacturing Competitiveness 

through the Improved Recycling Act and recycling data collection, 

the EPA recognizes that there are limited aggregate data to evaluate the success of recycling programs at the local, State, regional, 

or national level. EPA’s Municipal Solid Waste Characterization 

Report was designed to provide a snapshot of the U.S. municipal 

solid waste stream and is a primary data source at the national 

level. The report includes data and trends since 1960 and analyzed 

the composition and amounts of municipal solid waste in the U.S. 

and how those materials are recycled, incinerated, and land-filled. 

It is used by a broad range of entities, including local, State, Federal governments, NGOs, the public, academia, and industry for a 

variety of progressively more complex and specific purposes, some 

of which were not originally anticipated or designed for in the original report. 

Recognizing that revisions of the MSW Characterization Report 

could be helpful, EPA issued a Federal Register Notice in September 2011 and received public comments from industry, local and 

State governments, and recycling groups. EPA plans to revise and 

expand the next Characterization Report to reflect an ongoing shift 

to sustainable materials management essentially to identify opportunities to maximize the economic and environmental benefit from 

reusing materials rather than throwing them away. 

We believe that the data collected for the MSW Characterization 

Report will inform the public and private sector on current recycling trends and practices and identify areas needed to be addressed to support increased recycling and support sustainable materials management efforts. The EPA is evaluating new methodologies and will continue to publish a report annually with incremental changes over time. 

Moreover, we continue to engage industry to identify ways to enable greater reuse and recycling of materials because of the economic benefits including job creation, as well as its environmental 

benefits. 

While we support the goals of the draft bill, we have several comments. The bill does not provide authority to require various 

sources referenced in the draft bill to provide specified information 

to achieve its goal. While the draft legislation intends for the information collected to be voluntary, it may fall short of its goal to provide the enhanced data needed to help more informed decisionmaking among policymakers and government officials and help the 

private sector increase the use of recyclable materials. 

33 

EPA’s planned revision and expansion of its MSW Characterization Report will help inform the public and private sector about 

sustainable materials management. While the draft bill states that 

the information collected by EPA is intended to be voluntary, this 

appears to be contradicted by the Confidential Business Information provision. Current law already provides those protections, and 

should an owner have such confidential proprietary information, 

they could seek those protections. Having the broad protections defined in the bill kind of gets in the way of the intention of the bill. 

With that, Mr. Chairman, I close my remarks. 

[The prepared statement of Mr. Stanislaus follows:] 

34 


81483.018

Testimony of Mathy Stanislaus 

Assistant Administrator 

Office of Solid Waste and Emergency Response 

U.S. Environmental Protection Agency 

Before the 

Subcommittee on Environment and the Economy 

Committee on Energy and Commerce 

United States House of Representatives 

JUlle 27, 2012 

Mr. Chairman. Ranking Member Green. and Members of the Subcommittee. thank you 

for the opportunity to testify today on ILR. 2997, which would amend the Comprehensive 

Environmental Response, Compensation. and Liability Act (CFRCLA). and on a legislative 

proposal regarding recycling data collection and a report to Congress. My testimony wililirst 

include a brief overview of federal reporting requirements related to releases from animal waste 

under CFRCLA and the Emergency Planning and Community Righl-To-Know Act (EPCRA) 

before (urning to H.R. 2997. I will then address the Agency's currem recycling data efforts and 

issues identified by the Agency related to the draft bill "Increasing Manufacturing 

Competitiveness Through Improved Recycling Act." 

FEDERAL REPORTING REQUIREMENTS: EMISSIONS FROM ANIMAL WASTE 

In December 2008. EPA issued a final rule "CERCLA/EPCRA Administrative Reporting 

Exemption for Air Releases ofllazardous Substances from Animal Waste at Farms." The 

exemption became eiTeetive on January 20, 2009 and exempts farms from reporting under 

CERCLA seetioll 103. The final rule also exempts farms that release hazardous substances from 

animal waste to the air from reporting lInder FPCRA section 304 if they stable or contine/ewer 
35 


81483.019

than the number of animals to be considered a large concentrated animal feeding operation 

(CAFO) threshold as defined in Clean Water Act regulations. That final rule is'currently under 

EPA review to address issues raiscd by a range of stakeholders. In reviewing the final rule, we 

will take into account conccrns raised by the agricultural community as well as address the 

statutory objective of public transparcncy. 

To help infol111 future Agency decision making based on the best science, EPA, initiated 

a two-year National Air Emissions Monitoring Study. The study, funded and conducted by 

certain operators in the agriculture sector, gathered air emissions and process data from farms in 

nine states. The Agency is currently reviewing data fro111 the study as well as other relevant data 

submitted in response to the Agency's 2011 Call for Information, and we have developed two 

draft emissions estimating methodology (EEI\'1) reports. In March 2012, the EPA requested the 

Science Advisory Board (SAI3) to review the draft EEMs and also made the draft EEMs 

available for public review and com111entl. In devcioping the final emissions estimating 

methodologies. the EPA will consider public comments submitted to EPA and the Science 

Advisory Board panel recommendations which will be made through an open and public process. 

The EPA public commcnt period and the S/\B review art) concurrent but independent processes 

that will provide the agency with independent scientific and technical advice from the SAB panel 

of experts while also providing all stakeholders an opportunity to review and comment via an 

open transparent public review process. 

'SAB Review: bUQ: 

Draft EEMs: 

2 
36 


81483.020

H.R. 2997 

H.R. 2997 v.ould amend CERCLA to specifically exempt manure li'om the definitions of 

hazardous substance and pollutant or contaminant under Section 101 of the Act. EPA has 

concerns with the bill. Let me be clear: EPA has never designated manure as a hazardous 

substance nor has the Agency ever designated a farm a Superfund site and has no plans to do so. 

As discllssed above. we believe EPA's 2008 final rule C'CERCLA/EPCRA Administrative 

Reporting Exemption fix Air Releases of Hazardous Substances from Animal Waste at Farms") 

has addressed concerns raised by the f~mn sector related to air release reporting under CERCLA 

and EPCRA without removing important CERCLA response authorities. 

"1anure is not a hazardous substance. However. there arc substances associated with 

manure, such as ammonia and hydrogen sulfide. which arc by definition hazardous substances 

and can threaten public health and the environment. The effect of the bill would be to prevent 

the EPA frol11using CERCLA response authorities to respond to releases to the cnvironment 

when manure is the source of those hazardous substances, even if the release, for instances such 

as thc tllilure of a large manure waste lagoon. presented a substantial danger to the public health 

and the environmcnt It would also prevent the Agency from issuing CERCLA abatemcnt orders 

to require response to damaging releases. Therefore. we have concerns with the broad impacts of 

this bill. 

EPA's CURRENT RECYCLiNG DATA COLLECTION EFFORTS 

EP A continues to recognize the positive environmental and economic bencfits that can 

result !i'om the reuse/recycling of used industrial. commercial and residential materials, including 

reduced air emissions. reduced need 1'01' disposal. and reduced lise or virgin resources, when 

3 
37 


81483.021

thcse activities arc conducted in a protective manner. For instance, increasing the safe and 

effective management and handling of used electronics in the United Swtes is one of the goals of 

the National StrategyjiJr Electronics Stewardship, the federal government's plan to enhance the 

management of electronics throughout the product lifecycle, Mismanagement of used electronics 

is not only potentially harmful to human health and the environment, it is a missed opportunity to 

recover valuable, often scarce resources tllat can be returned to the electronics s'upply chain to 

make new products, 

Consistent with the actions identified in the Strategy, EPA is currently developing an 

Electronics Challenge that will increase responsible recycling through the use of certified 

refurbishcrs and recyclers in the U,S" increase transparency and accountability through public 

posting of data and commitments, and engage stakeholders across the electronics sector 

(including manufacturers. retailers. stale and local governments, and recyclers), 

In addition, in an elTorlto realize the Illany benefits associated vvith materials 

management. we have launched a broader emwt to advance the concept and practice of 

sustainable materials management. Reducing waste and increasing recovery and reuse of 

materials in lieu of virgin materials are critically important for the Cuturc of the environment and 

our economy. Without looking at waste as a potential valuable commodity and capturing its 

value and thereby reducing the environmental footprint fl'om materials usc, we wililravel down a 

path that is unsustainable both cconomically and environmcntally, 

Today, there arc limited aggregate data to evaluate the sliccess of recycling programs at 

the local. statc. regional or national level. The EPA's anlluallv1ul1iClj>a1 Solid Waste (MSW) 

Characterization Report, was designed to provide a snapshot of the U.s, municipal solid waste 

stream and is the primary data source at the nationalleve!' The report includes data and trends 

4 
38 


81483.022

since 1960. and analyzes the composition and amounts of municipal solid waste in the U.S" and 

how those materials arc recycled, incinerated. and landtillcd. [t is used by a broad range of 

entities including local. state. and fi:dcral governments, NOOs. the public. academia. and 

industry for a variety of progressively more complex and specitic purposes, some of which were 

not anticipated or designed for in the original Rcp0l1 and methodology. For this reason. EPA 

issued a Federal Register Notice in September 01'201 L and received public comments on 

potential revisions to the Report. Currently. EPA is evaluating new methodologies and will 

continue to publish the report annually. with incremental changes over time. 

EPA has f(\tmd that while S0111e states have fInancial incentives tied to their recycling 

rates. and either report or require that such data be collected. most states do not have the data 

necessary to provide accurate recovery rate information. Other barriers to data collection include 

business-to-busincss recycling where large streams of recycled commodities go from retailers 

and manufacturers directly back to recycling market end users, as well as market competition 

and privacy concerns. In addition. there are large construction and demolition and nonhazardous materials recycling enterprises that are not included in cOllventional MSW generation 

or reporting protocols. 

As discussed above. the EPA is shining its emphasis from waste management to life 

cycle-based. sustainable materials management Data and mctrics are the foundation for a 

sllstainable materials management program. as well as the basis for reporting the EPA's 

performance which includes recovery rates achieved by U,S. recycling programs. For this 

reason. EPA plans to begin to revise and expand the next MSFV Characterization Report to 

reneet the shift to sustainable materials management. We believe (hat the data to be collected for 

the MSW ('haracterizalion Reporl would help inform the public and private sector on current 

5 
39 


81483.023

recycling trends and practices and identify arcas needed to be addressed to support increased 

recycling and support sustainable materials management efforts. 

THE INCREASING MANUFACTURING COMPETITIVENESS THROUGH 

I'VIPROVED RECYCLING ACT 

While EPA supports the goals of the draft bill. we have several concerns. The bill should 

provide EPA the authority to require the variolls sources referenced in the draft bill to provide 

the specified information to EPA. While the draft legislation intends for the information 

collection to be voluntary. it may fall short of its goal to provide the enhanced data needed to 

help more informed decision-making among policy makers and government officials and help 

th.: private sector increase the lise of recyclable materials. 

First. as noted above. EPA is revising and expanding the it/ISW Characterization Report 

to reflect the shift to sustainable materials management. EPA believes that this increased data 

collection will help inform the public and private sector about sustainable materials management. 

However. as I noted. there are constraints with obtaining l110re inf(lrmation due to lack of 

consistency in data collection and reporting. The dmn bill notes that the information collected 

by EPA is intended to be voluntary: however. this appears contrary to the provision which states 

that int(lnllation submitted to EPA from private entities shall be considered conlldential business 

inf()fJllHtion (eBI). Current law already provides protections to confidential business 

information and private entities may designate information submitted to EPA as CBI. Applying 

CBI protection to all recyelnhle materials information submitted to EPA seems unnecessary and 

would limit the inf(wmatiol1 the Agency could include in a report to Congress. Finally. the bill 

6 
40 


81483.024

)rovides two years for the data collection and report to Congress. This timeframe may bc 

nsufficicnt for both the extensive data collection and analysis and resulting report to Congress. 

20NCLUSION 

EPA has concerns with H.R. 2997 and with the drat! "Increasing rvlanut:1eturing 

::ompetitivencss Through Improved Recycling Act of 2012." bills. CPA's CCRCLA authority to 

'cspond to releases of hazardous substances and pollutants or contaminants and to compel parties 

who caused or contributed to releases to respond or to pay fl.)r the cicanup of damaging releases 

is an important statutory tool to hc!p protect public health and the environment. CPA has already 

lddressed the perceived burden to farmers related to air release reporting under CCRCLA and 

CPCRA through rulemaking. In addition. while EPA supports the goals of the "Increasing 

Manufacturing Competitiveness Through Improved Recycling Act of 20 12," EPA has concerns 

with how these goals would be met. 

7 
41 

Mr. SHIMKUS. Thank you very much. 

I now recognize myself for 5 minutes for opening round of questions. 

I want to follow up on what Mr. Long started about really addressing a timeline because I think that has kind of raised a lot 

of issues, too. So on October 21 of 2008, the EPA proposed in the 

Federal Register the National Pollutant Discharge Elimination System Concentrated Animal Feeding Operation Reporting Rule. In it, 

EPA stated that it is ‘‘on a separate track to develop a rulemaking 

to amend reporting requirements for livestock operations on air 

emissions under CERCLA Section 103 and EPCRA Section 304.’’ 

Can you tell me the status of this separate rulemaking for the reporting of EPCRA Section 304 and CERCLA Section 103? 

Mr. STANISLAUS. Sure. Currently, we are in the midst of collecting air emissions data working with industry on that modeling. 

There is actually a separate office outside of my office collecting 

that data. So we are in the midst of evaluating that data. We cannot move forward on rulemaking until that data collection is done, 

so I don’t have a precise date but I can follow up with information 

regarding that. 

Mr. SHIMKUS. And if you would, we would appreciate that. And 

what was the impetus for changing the rule issued by EPA in 2008 

on these matters? What caused the change from the position taken 

in 2008 to the position of the 21 October 2011? 

Mr. STANISLAUS. Well, I mean we heard from various stakeholders as to the underlying basis of that determination of where 

we drew the line in terms of the size of the facility that would be 

exempted and those that will still be covered by the rule. So we are 

taking a hard look as to the data support for that determination. 

Mr. SHIMKUS. Were you petitioned? 

Mr. STANISLAUS. I am not sure. Yes, I think we were in litigation 

and we remanded from that litigation to evaluate the rule. So we 

were sued. So we decided to remand to EPA to examine another 

rule. 

Mr. SHIMKUS. Which brings up my favorite subject, which is the 

judgment fund and compensation pursuits and who pays what, but 

that is for another hearing. 

What is the status of the proposed rule of October—well, we have 

kind of answered that. Will that proposed rule have any impact on 

the way these agriculture operations are governed under CERCLA 

or EPCRA? 

Mr. STANISLAUS. Well, we are taking a look at just the public notification provision and looking at the air emission studies to inform that strictly with respect to the notification of emissions from 

these facilities and not other aspects of CERCLA. 

Mr. SHIMKUS. EPA has testified that it has never filed a 

CERCLA Section 104 action nor anything under CERCLA Section 

106 or 107 with regard to animal farming operations. How many 

total RCRA Section 703 Imminent Hazard Action cases has EPA 

brought against a farming operation? 

Mr. STANISLAUS. I don’t have that information. I will get that to 

you. 

Mr. SHIMKUS. Thank you. Is it fair to say that EPA considers 

laws other than CERCLA emergency authority as appropriate reVerDate Aug 31 2005 14:56 Jun 19, 2013 Jkt 037690 PO 00000 Frm 00045 Fmt 6633 Sfmt 6633 F:\11F7AA~1\112-15~1 WAYNE
42 

sponse to environmental threats which may occur at animal agriculture facilities? 

Mr. STANISLAUS. Clearly, we have used other authorities in certain circumstances. As I testified, what this would do, it would prevent the use of what we call an abatement order. So immediately 

moving forward to clean up the result of a major spill and to prevent immediate impacts like drinking water impacts and impacts 

to local residents. 

Mr. SHIMKUS. If EPA changed the 2008 reporting regulation to 

include more animal facilities in CERCLA Section 103 and EPCRA 

Section 304, how many new facilities are subject to EPCRA reporting? 

Mr. STANISLAUS. We don’t have that analysis yet. We have not 

made a decision to change. 

Mr. SHIMKUS. Do you have a projection of a cost that it would 

incur of the additional reporting? 

Mr. STANISLAUS. I mean clearly if we decide to change, we will 

conduct that analysis. 

Mr. SHIMKUS. And will you conduct an analysis of the additional 

cost to the Agency of receiving those reports? 

Mr. STANISLAUS. Sure. 

Mr. SHIMKUS. How about the cost of receiving and acting on 

those reports? 

Mr. STANISLAUS. Acting depending, yes, on our authorities, yes. 

Mr. SHIMKUS. OK. And I thank you for your time. You know, the 

point being we think that under current law as I stated earlier that 

duplication of this is just redundant, costly, inefficient, and that is 

why we raise this issue. 

So thank you for your time and I yield back my time and recognize the ranking member of the subcommittee, Mr. Green, for 5 

minutes. 

Mr. GREEN. Thank you, Mr. Chairman. 

Administrator, again, thank you for being here. Supporters of 

H.R. 2997 say that the Clean Water Act, Clean Air Act, and the 

Resource Conservation Recovery Act sufficiently regulate and address any environmental damage that would result from manure 

contamination. Why do you feel that CERCLA is still necessary? 

Mr. STANISLAUS. Well, CERCLA serves a distinct purpose. There 

are two aspects that we are talking about here today, and one is 

to preserve the ability to respond to a major catastrophic event 

that requires an immediate cleanup so there are no public health 

or environmental harms. You want to preserve that and it is critical that we preserve that authority. 

The other is for large facilities. Particularly local responders and 

local government have pointed out during our original rulemaking 

the real important need for that information so they can effectively 

prepare should an event occur. 

Mr. GREEN. There are concerns about small farms being captured 

by future regulations. I know there is a difference between my family farm and a feedlot—— 

Mr. STANISLAUS. Yes. 

Mr. GREEN [continuing]. For example, although there could be a 

family farm that includes a feedlot. So what are the distinctions? 

43 

Mr. STANISLAUS. Well, yes, it is defined under the Clean Water 

Act. Currently, only large CAFOs are subject to the rule but a significant large number of species. I can give you the various—afterwards. 

Mr. GREEN. Yes, if you—— 

Mr. STANISLAUS. OK. 

Mr. GREEN [continuing]. Just submit it to us—— 

Mr. STANISLAUS. Yes. 

Mr. GREEN. And granted, there is some concern obviously that if 

you are downwind or downstream or down a hill from a large feedlot that there is an issue, but again a small farm typically is not 

the issue. So I think that is—— 

Mr. STANISLAUS. That is correct. 

Mr. GREEN. Some witnesses today argue that phosphates in manure are not now nor have they ever been equivalent to harmful 

chemicals that CERCLA has been addressing in the last 32 years. 

Do you agree with that? 

Mr. STANISLAUS. I am sorry. Could you say that one more time? 

Mr. GREEN. That phosphates in manure are not now nor have 

they ever been equivalent to harmful chemicals that CERCLA has 

been addressing for the last 32 years. Do you think phosphates or 

those type of harmful chemical in certain numbers? 

Mr. STANISLAUS. Yes. I mean really those chemicals and other 

chemicals listed as a hazardous substance, they are listed for a reason because there are underlying studies that show a risk and impact if it is above a certain level of concentration. 

Mr. GREEN. OK. Congressman Long’s statement talked about 

measuring ammonia from open-air beef cattle feedlots is impractical since there is no pipe or any other way to measure ammonia 

emissions. I have in our district lots of industrial capacity and most 

of my plants now do fence-line monitoring. Could we see the same 

type of fence-line monitoring if you had a huge feedlot operation for 

testing for ammonia like we test for other releases? 

Mr. STANISLAUS. We don’t currently envision that. I mean that 

is not part of the rule that we are talking about. 

Mr. GREEN. But that is what happens. Like I said, I have refineries and chemical plants who, in the last 10 years, have adopted 

that simply because they want to know what they are going to 

blamed for—— 

Mr. STANISLAUS. Yes. 

Mr. GREEN [continuing]. Instead of their neighbors since they are 

literally fence line to fence line. But that is a way that you can 

measure ammonia from a facility? 

Mr. STANISLAUS. Well, yes. But again we are not proposing that 

at the moment. 

Mr. GREEN. On the recycling bill, I share your concerns about the 

surveys being voluntary. Can you elaborate on why these concerns, 

if we make them mandatory, would these specific authorities that 

would need to be included in the legislation for you to carry out 

your study? 

Mr. STANISLAUS. Well, very simply, I think the good intent of a 

bill is to provide more granular data from a variety of sources. So 

some of those sources are State and local governments, some of 

them are industry, and some of the data is industry-to-industry. So 

44 

to really provide the kind of information, the granular, that industry wants and other sectors want, we would need to have a comprehensive set of data. So we have data gaps that really cut 

against the intended nature of really advancing the environmental 

economic protections of that. So without that, I don’t see how the 

goals would be met. 

Mr. GREEN. Well, and you could end up with just self-selection 

and really holes in your data that you couldn’t really address effectively. 

Mr. STANISLAUS. That is right. Some industries, some companies 

voluntarily put that information up and others would not, but we 

would not be able to make an industry-specific judgment that is 

statistically significant in some cases if we have data gaps. 

Mr. GREEN. OK. The 2012 Interior/Environment Appropriations 

Act Congress directed EPA to report to Congress on development 

of a process to collect additional data on recovery rates achieved by 

U.S. recycling programs. That report was due in March of this 

year. Do you know the status of that report? 

Mr. STANISLAUS. Yes, that was submitted on that day. That was 

submitted, yes. 

Mr. GREEN. OK, thank you. 

Mr. Chairman, I don’t have any other questions. 

Mr. SHIMKUS. Gentleman’s time is expired. 

The chair recognizes the vice chairman of the committee, Mr. 

Murphy, for 5 minutes. 

Mr. MURPHY. Thank you. Welcome here. 

I understand EPA identified better collection of data on recycling 

as an issue in your fiscal year 2012 justification on appropriations. 

In addition, I understand that in the fiscal year 2012 appropriations bill Congress directed the EPA to develop a plan to collect 

better information and report on that to Congress. Finally, I understand that EPA has solicited public comment on what information 

you should include in your Municipal Solid Waste Characterization 

Report. So first of all, if you and Congress agree this is important, 

when can we expect the report to Congress on improving recycling 

data? When can we expect that? 

Mr. STANISLAUS. Yes, so the report has already been submitted 

per the congressional direction. We are advancing more granular 

data versus a characterization study. We did a Federal Register 

Notice. We solicited comments from a variety of stakeholders and 

gradually expanding the data collection under that report. 

Mr. SHIMKUS. So if the gentleman would yield. 

You have given an initial response but it is going to be a fuller 

analysis. Is that what you are testifying? 

Mr. STANISLAUS. Well, we—— 

Mr. SHIMKUS. You are talking about granular. 

Mr. STANISLAUS. Yes, so I just want to make sure I understand 

the question. 

Mr. MURPHY. I would like to know what granular means. Is it 

the full report? 

Mr. STANISLAUS. So we submitted a report per congressional direction this year. You know, as identified in that report, we identified the need to have better data, particularly data that goes beyond historic recycling and really looks at what we call material 

45 

management opportunities and where can we look at opportunities 

to reuse and reengineer. So we solicited comments with a Federal 

Register Notice. We are in the midst of evaluating that and our intention is, with respect to the data collection and the report that 

we issue publicly biannually, to have an expanded set of data. 

Mr. MURPHY. So that full report is done or not done? 

Mr. STANISLAUS. Yes. We are talking two reports. The report to 

Congress is done. 

Mr. MURPHY. OK. 

Mr. STANISLAUS. The MSW Characterization Report, we issue 

that—— 

Mr. MURPHY. And you responded to all the public comments, too? 

Mr. STANISLAUS. State that again. 

Mr. MURPHY. Have you responded to the public comment on the 

matter? 

Mr. STANISLAUS. We are in the midst of evaluating that—— 

Mr. MURPHY. OK. 

Mr. STANISLAUS [continuing]. Before that, yes. 

Mr. MURPHY. Can you detail the steps that EPA is taking to improve your existing Municipal Solid Waste Characterization Report? Can you detail for us, can you give information on the steps 

that EPA has taken to improve the existing Municipal Solid Waste 

Characterization Report? 

Mr. STANISLAUS. So I mean it is contained in the report. I can 

follow up on that. 

Mr. MURPHY. OK. Does the administration consider private sector recycling part of the green economy on green jobs? 

Mr. STANISLAUS. Oh, absolutely. 

Mr. MURPHY. It does? OK. And why hasn’t EPA, through your 

next report—though your next report is due—why isn’t EPA improving this data? I am still confused in terms of how you are 

working this. 

Mr. STANISLAUS. Well, that is exactly the point. Our effort currently is to actually improve the data with the real focus on identifying reuse opportunities and reengineering opportunities because, 

you know, we have heard from lots of industries who have told us 

that that information will be critical for them to make informed 

judgments. 

Mr. MURPHY. OK. Let me shift to another thing about electronics 

recycling initiatives if I could. Would you support electronic recycling initiatives that violate our trade obligation under the WTO? 

Mr. STANISLAUS. I guess I am not informed enough with respect 

to the international—— 

Mr. MURPHY. You can get back to us on that? 

Mr. STANISLAUS. I can get back to you on that. 

Mr. MURPHY. Thank you. Does EPA have existing authority to 

conduct the study called for in the Discussion Draft on these 

things? 

Mr. STANISLAUS. The study called for in the Discussion Draft? I 

would say we have general authority but I guess not as specific as 

set forth in the bill. 

Mr. MURPHY. How much funding will the expanded study—do 

you have any idea how much funding is going to be necessary to 

do that? 

46 

Mr. STANISLAUS. Well, we took a look at the estimate, the 

amount set forth in the bill and we believe that is inadequate. You 

know, our estimate is roughly about $800,000 a year to do that, as 

well as within the timeline is too restricted to complete the job. We 

think 2 years will not be enough to really do the kind of rigorous 

data collection that is set forth in the bill. 

Mr. MURPHY. Thank you, Mr. Chair, and I will submit other 

questions for the record. Thank you. 

Mr. SHIMKUS. I thank my colleague. 

Now the chair recognizes the chairman emeritus, Mr. Dingell, for 

5 minutes. 

Mr. DINGELL. Mr. Chairman, I thank you for your courtesy. 

Yes or no answers if you please. 

If manure is consolidated into a big lagoon, does EPA consider 

that circumstance a naturally occurring substance in its unaltered 

state from a location where it is naturally found? Yes or no? 

Mr. STANISLAUS. Well, I would have to ask within the answer to 

this be the CERCLA authority. CERCLA authority would not attach to that circumstance. 

Mr. DINGELL. Thank you. Has EPA ever responded to the release 

of a naturally occurring substance? Yes or no? 

Mr. STANISLAUS. No. 

Mr. DINGELL. Do you have any plans to do so? 

Mr. STANISLAUS. No. 

Mr. DINGELL. Is EPA aware that substances such as phosphorous 

are added to the feed at animal feeding operations? Yes or no? 

Mr. STANISLAUS. I guess I am not specifically aware but I am 

sure my staff is. 

Mr. DINGELL. OK. Were the Waco and Tulsa examples, situations 

where local governments were trying to recover response costs for 

protection of drinking water supplies from contamination caused by 

dairy or other animal feeding operations? Yes or no? 

Mr. STANISLAUS. I am not specifically aware of that litigation. 

We were not involved in that. That is my understanding—— 

Mr. DINGELL. But it was an action by the local governments—— 

Mr. STANISLAUS. That is right. 

Mr. DINGELL [continuing]. To protect their water supplies and 

the public health, is that not so? 

Mr. STANISLAUS. That is what has been represented. We were 

not involved in that. 

Mr. DINGELL. And it was causing substantial amounts of algal 

bloom, phosphorous, and other pollution of the waters of Lake 

Waco and the people in the area who used that for their water supply, is that right? 

Mr. STANISLAUS. Again, I am not intimately familiar with the 

facts. 

Mr. DINGELL. All right. Is EPA aware of any small farm operations as opposed to large-scale industrial AFOs that have triggered the reporting requirements for ammonia and hydrogen sulfide? Yes or no? 

Mr. STANISLAUS. Well, the reporting requirements currently 

strictly apply to large CAFOs. 

Mr. DINGELL. All right. EPA finalized an exemption in December 

2008 which exempted hazardous substance releases from animal 

47 

waste from the reporting requirement. Therefore, no data has been 

reported since that time. Is that true? 

Mr. STANISLAUS. Yes, data under CERCLA 103, that is correct. 

Mr. DINGELL. The air emission monitoring study was supposed 

to take 2 years but the draft development of emissions estimating 

methodologies for lagoons and basins at swine and dairy animal 

feeding operations reported that additional analysis is needed. Is 

there any data that shows that the broad exemption in the bill before is justified? Yes or no? 

Mr. STANISLAUS. We are in the process of evaluating that data. 

We have not made a conclusion. 

Mr. DINGELL. But you do not have the data because the study 

is not available to you, is that right? 

Mr. STANISLAUS. Well, there is a separate study that a separate 

office of EPA is conducting with data from various industrial 

sources. 

Mr. DINGELL. All right. Has any public agency determined that 

a public health hazard existed based on the release of hydrogen 

sulfide at a dairy farm or other animal feeding operation? Yes or 

no? 

Mr. STANISLAUS. I don’t know whether a public health agency 

has made that—— 

Mr. DINGELL. You know of none? 

Mr. STANISLAUS. I know of none, no. 

Mr. DINGELL. Now, Mr. Chairman, we are in an extraordinarily 

dangerous situation. On one hand, we have a reporting exemption 

that has prohibited collection of any data for over 3 years. On the 

other hand, we know that the Agency for Toxic Substances and 

Disease Registry has previously testified before this panel that 

there was a public health hazard as a result of high levels of hydrogen sulfide at a dairy farm in Minnesota. I do not believe that we 

need a broad exemption from reporting where we know that there 

is at least one significant problem. 

Now, if you have a big animal feed operation, i.e., one of these 

gigantic hog farms or a tremendous, large animal operation like 

you would find at Monfort out around Longworth, Colorado, you 

can smell that damn thing 40 miles away. Approximately what size 

city would have that much manure flowing through its waste treatment system? 

Mr. STANISLAUS. What size city? 

Mr. DINGELL. Yes. 

Mr. STANISLAUS. I am not sure that—— 

Mr. DINGELL. The huge hog farm there got thousands of hogs, 

you got a huge beef lot, how many animals would be at those and 

what would be the amount of the manure that would be collected 

there? And how would that equate to the size of a city, say Minneapolis or Cedar Rapids or Muskegon or Detroit? 

Mr. STANISLAUS. I can get back to you with respect to data. 

Mr. DINGELL. I would like to have that. Please give us a table 

if you could—— 

Mr. SHIMKUS. Gentleman’s time—— 

Mr. DINGELL [continuing]. Of just how much manure is out there 

and what you do to a city if it had that kind of operation, risking 

both air and water pollution? 

48 

Mr. Chairman, I thank you for your courtesy. 

Mr. SHIMKUS. The gentleman’s time has expired. 

The chair now recognizes Mr. Harper for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman. EPA received $9.5 million for waste minimization and recycling 

in 2012 and the Obama administration requested EPA about this 

same amount for fiscal year 2013. At the same time, you said that 

you want to focus on sustainable materials management. 

Mr. STANISLAUS. Um-hum. 

Mr. HARPER. So my first question is don’t you agree that if EPA 

wants to be a leader on this issue, you need good information about 

how materials are being recycled currently? 

Mr. STANISLAUS. Absolutely. 

Mr. HARPER. And are you telling me that you can’t spend 

$400,000 a year for 3 years from within your current appropriations level to help get better information to solve problems you say 

you want to solve? 

Mr. STANISLAUS. Well, as I testified earlier, we in fact have collected information and plan to include that as part of our characterization report. 

Mr. HARPER. If you break down that figure, it comes to about $182 per employee—— 

Mr. STANISLAUS. Um-hum. 

Mr. HARPER [continuing]. So how do those folks even know what 

they should be focusing on if they don’t understand how that existing recycling system works? 

Mr. STANISLAUS. Well, we have a significant amount of data that 

we report on regularly that is used by industry, used by local government to identify economic and environmental opportunity. And 

we also recognize that additional and more precise data would be 

beneficial to advance the recycling market, and that is our intention to do so. 

Mr. HARPER. All right. Let me ask this. Does the administration 

consider private sector recycling part of the green economy or green 

jobs it is trying to promote? 

Mr. STANISLAUS. Well, I mean clearly recycling by private industry is critically important. We work with industry all the time. We 

recognize the economic environmental value of that. In fact, we 

have ongoing conversations with industry to advance that. 

Mr. HARPER. My next question would be I understand that the 

EPA does not have an approved information collection request 

under the Paperwork Reduction Act for recycling data. That means 

that your current report on solid waste and recycling can only rely 

on published information collected from I believe no more than 

nine people. Is that correct? 

Mr. STANISLAUS. I am not sure that is correct but I will get back 

to you on that—— 

Mr. HARPER. OK. 

Mr. STANISLAUS [continuing]. In terms of the sources of data that 

we use for the characterization study. 

Mr. HARPER. Is the information asked of in the Discussion Draft 

already requested and published by EPA? 

Mr. STANISLAUS. Well, if you are asking how the bill compares 

with the data we current collect, you know, we acknowledge that, 

49 

one, there is aggregate data that we are currently going by and 

clearly the ability to collect more data is important. We also identified earlier in my testimony that if we focus on just voluntary data, 

it is still going to leave a gap in terms of the comprehensiveness 

of the data. 

Mr. HARPER. I just want to be clear. Are you saying that you only 

surveyed nine people—— 

Mr. STANISLAUS. No, that is not—— 

Mr. HARPER [continuing]. Or you didn’t or you don’t know in this 

recycling—— 

Mr. STANISLAUS. Well, I believe the nine people relates to whether you do or do not need information collection provision. This is 

developed over many years so our sources include local and State 

government, as well industry. In terms of our total sources of data, 

I will get back to you on that. 

Mr. HARPER. Well, you know, I am just curious if there are just 

a few surveys that were done and then there was an extrapolation 

done and based upon that information or how that came about. 

Mr. STANISLAUS. It is a yearly collection of data from multiple 

sources. 

Mr. HARPER. OK. You say that you use the materials flow methodology to estimate the amount of recycling nationwide using estimates of goods produced and materials discarded or recycled and 

trying to do a mass balance. How can that method tell you anything about recycling systems? 

Mr. STANISLAUS. Well, based on data we collect, we analyze the 

systems and some of those systems are dependent on various kinds 

of industries, so based on the data we extrapolate and do systemsbased analysis. 

Mr. HARPER. Is it safe to say or fair to say that we really don’t 

know where recycled material is coming from? 

Mr. STANISLAUS. No, I wouldn’t say that. I think we have a fairly 

good feel for recycling and various industries and opportunities for 

recycling in various industries. We have ongoing conversations 

with numerous industries that want to promote that. Clearly, more 

data will help advance the opportunities in recycling. 

Mr. HARPER. So are you able to give us a breakdown of where 

the recycled material comes from across—— 

Mr. STANISLAUS. Sure. Sure. In fact, we submitted a report to 

Congress and we could provide you that characterization study any 

supplements to that. 

Mr. HARPER. Thank you, Mr. Chairman. I will yield back. 

Mr. SHIMKUS. The gentleman yields back. 

The chair now recognizes the ranking member of the full committee, Mr. Waxman, for 5 minutes. 

Mr. WAXMAN. Thank you, Mr. Chairman. 

Proponents of this legislation have said that Superfund was 

never meant to address manure and that it is not needed to address contamination from manure. This is simply not true. The legislative history of Superfund shows that manure was considered 

and Superfund has been used to address contamination from manure and could be an essential tool in addressing potential future 

contamination. On May 19, 2000, EPA issued a Notice of Violation 

to the Nation’s second-largest pork producer, Premium Standard 

50 

Farms, for failing to comply with release reporting obligations in 

Section 103 of Superfund and Section 304 of EPCRA with respect 

to releases of ammonia at 12 lagoons on facilities owned by Premium Standard Farms. Is that correct, Mr. Stanislaus? 

Mr. STANISLAUS. I can get back to you. I don’t have the specific 

information in front of me. 

Mr. WAXMAN. OK. Those violations were resolved in a settlement 

on November 19, 2001, and a payment of a civil penalty. In September 2006, EPA also filed a civil complaint against Seaboard 

Foods, concentrated animal feeding operation in Oklahoma for releases of ammonia. Proponents of this bill discount the importance 

of these emissions. Can you explain how a community would experience an ammonia release that drifts through its neighborhood? 

Mr. STANISLAUS. Well, I could generally describe it and get 

back—I mean clearly ammonia is listed as a hazardous substance 

because of underlying health studies that show a detriment-tohealth consequence from inhaling ammonia. 

Mr. WAXMAN. Well, ammonia can cause acute and long-term 

health effects. What I went through were examples of Federal responses to contamination from manure. States and local governments have also brought suit under Superfund based on contamination caused by manure to recover taxpayer funds spent on cleanups. The city of Tulsa, Oklahoma, brought suit for contamination 

under Superfund, as did the city of Waco, Texas. Both of those 

suits settled. The State of Oklahoma acting through the Attorney 

General also brought suit under Superfund to recover cleanup costs 

against poultry farms in Arkansas. That case is still pending. 

If H.R. 2997 becomes law, will States and towns be able to use 

Superfund in the future to recover public funds spent cleaning up 

contamination from manure? 

Mr. STANISLAUS. As I testified, this would prevent the use of all 

of CERCLA authorities, including response and abatement orders, 

as well as other provisions of CERCLA. 

Mr. WAXMAN. You testified, Mr. Stanislaus, that a large manure 

waste lagoon could fail and present a substantial danger to public 

health and the environment. In such a case, if this bill were enacted, what impact would H.R. 2997 have on EPA’s ability to require a response to such a spill? 

Mr. STANISLAUS. Well, one, we would not be able to issue an 

abatement order against the responsible party to immediately ameliorate that public health risk. Separately, if a responsible party 

was not willing to do so, it would prevent us from using our resources to prevent that immediate risk to public health. 

Mr. WAXMAN. As I understood the testimony from Representative 

Long, he said he wanted to preserve existing authorities and requirements just argue we don’t need new ones. These authorities 

and requirements under Superfund that we have discussed are existing authorities, aren’t they? 

Mr. STANISLAUS. That is correct. 

Mr. WAXMAN. And they have been since 1980, is that right? 

Mr. STANISLAUS. That is right. 

Mr. WAXMAN. So turning quickly to the recycling bill, I expect 

that we will hear concerns from later panels and information voluntarily given to EPA about municipal waste streams will not be 

51 

protected appropriately from disclosure. If a company or trade association submitted confidential business information to EPA in the 

context of the MSW Characterization Report or in any other context, what protections would the Agency provide for that CBI? 

Mr. STANISLAUS. We have an existing process where if a company 

claims confidential business information, we evaluate whether that 

is or not and engage the company. So there is an existing rigorous 

process to protect proprietary information. 

Mr. WAXMAN. OK. Thank you very much, Mr. Chairman. I will 

yield back my time. 

Mr. SHIMKUS. The gentleman yields back his time. 

The chair recognizes the gentleman from Colorado, Mr. Gardner, 

for 5 minutes. 

Mr. GARDNER. Thank you, Mr. Chairman. 

And thank you, Mr. Stanislaus, for being here today. 

In your opening statement you stated that, ‘‘as discussed above, 

we believe EPA’s 2008 final rule’’—it goes on to talk about 

CERCLA, EPCRA—‘‘has addressed concerns raised by the farm 

sector.’’ Is the farm sector supportive of this provision? 

Mr. STANISLAUS. The bill? 

Mr. GARDNER. You are talking about some of the things I think 

in your opening statement—I wrote it down—where you talked 

about the EPA acting in response to concerns raised by the farm 

sector. 

Mr. STANISLAUS. You are talking about the 2008 rule? 

Mr. GARDNER. Right. 

Mr. STANISLAUS. Yes, I think it reflects their comments in terms 

of particularly ensuring the small farmer’s burdens are addressed. 

Mr. GARDNER. OK. So the farm sector supports the 2008 rule? 

Mr. STANISLAUS. Well, we have heard from lots of farms and I 

think particularly it recognizes the small farms’ issues. So—— 

Mr. GARDNER. So the farm sector supports the rule, then? 

Mr. STANISLAUS. Well, again, we have had multiple stakeholders 

and I am sure that is many segments of—particularly the small 

farmers support that provision. 

Mr. GARDNER. What is a small farm to you? 

Mr. STANISLAUS. Well, small farms are those that are defined in 

the Clean Water Act. These are not concentrated animal feeding 

operations. They are below that size. And I can give you the specific details based on the—— 

Mr. GARDNER. So people who don’t have feedlots then basically? 

Mr. STANISLAUS. I am sorry. Say it again. 

Mr. GARDNER. So they don’t have feedlots? That is what you are 

describing as a small farm is somebody without a feedlot? 

Mr. STANISLAUS. Well, someone without basically an industrial 

level animal feeding operation. 

Mr. GARDNER. What is an industrial level—— 

Mr. STANISLAUS. Well, it is defined based on the various kinds 

of animals used and we could give you a list of what those definitions are. 

Mr. GARDNER. Have you ever been to a concentrated animal feeding operation? 

Mr. STANISLAUS. I have been adjacent to them, yes. 

Mr. GARDNER. But have you been onsite? Have you been on one? 

52 

Mr. STANISLAUS. Not in it, but adjacent to it, yes. 

Mr. GARDNER. Adjacent? What do you mean? You have driven by 

one? 

Mr. STANISLAUS. No, I have walked in the periphery of that, the 

fence line of that. 

Mr. GARDNER. So you have seen a feedlot? You have gone 

through it? 

Mr. STANISLAUS. I have. 

Mr. GARDNER. OK, very good. 

A couple of questions for you. In considering and requiring all 

CAFOs to report emissions of ammonia and hydrogen sulfide under 

CERCLA, you are considering that right now? 

Mr. STANISLAUS. Well, we are first looking at data as well as estimating methodologies with industry and other stakeholders to 

make sure that we are able to estimate their emissions first. Based 

on that, that is going to inform our rulemaking. So we have not 

come to any conclusion on that. 

Mr. GARDNER. But you are considering it then? 

Mr. STANISLAUS. Well, yes. We issued a Federal Register Notice 

regarding that. 

Mr. GARDNER. In your October 2011 Proposed Clean Water Act 

Section 308 rule that you were talking about using this reporting 

rule to gain information for livestock operations, it implies that you 

are considering wrapping all livestock operations under these reporting rules. And I certainly hope that that is not the path that 

you are planning on going down? 

Mr. STANISLAUS. Yes, I am not familiar with that specific provision. 

Mr. GARDNER. Do open-air cattle feedlots present an emergency 

situation? 

Mr. STANISLAUS. Not inherently. Again, as I testified earlier with 

respect to this bill, what we want to preserve is those limited circumstances where there could be a catastrophic kind of failure that 

results in potential public health and environmental risk. 

Mr. GARDNER. And so what is it that responders are going to respond to at a feedlot? 

Mr. STANISLAUS. So just to be clear, during the 2008 rule development, what I was articulating earlier is that from a need-to-know 

information, particularly of large CAFOs, emergency responders, 

local government officials noted that they need to know, particularly these large facilities so they can have the infrastructure in 

place to respond should there be a release of a significant quantity. 

Mr. GARDNER. So I live in a small town of about 3,000 people in 

the eastern plains of Colorado. It is no longer the Monfort feedlot 

but it is certainly still in existence outside of my town. It is a very 

large operation, employs a great number of people. And so my volunteer fire department, the first responders there, would they be 

equipped with a HAZMAT operation to deal with this proposed 

emergency situation? Is that what you are trying to get at? 

Mr. STANISLAUS. Well, generally, emergency responders need to 

know the kind of equipment based on what is within their jurisdiction. So it is going to be tailored around the potential releases and 

making sure the proper equipment. 

53 

Mr. GARDNER. So what would that proper equipment be for my 

local police department or fire department for the feed lot down the 

road? 

Mr. STANISLAUS. Well, it is various kinds of cleanup equipment. 

Cleanup equipment varies depending on the kind of releases. You 

know, so I can get back to you with the specific kinds—— 

Mr. GARDNER. Well, what kind of a release do you anticipate 

happening? 

Mr. STANISLAUS. No, again, with respect to the particular issue 

we are talking about, we want to preserve the ability—we have a 

catastrophic failure that impacts, for example, drinking water 

sources, impacts residents, then making sure that we can immediately clean that up—— 

Mr. GARDNER. This is like a cloud of ammonia you anticipate 

moving toward town? 

Mr. STANISLAUS. No, what I was specifically referring to is a 

major CAFO having a breach and significant volumes that impacts 

drinking water source and being able to clean that up so it doesn’t 

compromise public health. 

Mr. GARDNER. I see my time has expired. One last question, Mr. 

Chairman, if you will indulge. 

Are you using aerial surveillance right now to monitor CERCLA 

compliance with CAFOs? 

Mr. STANISLAUS. Well, yes, I think that the Agency has made a 

statement regarding its aerial surveillance and we could provide 

that to you. 

Mr. GARDNER. So you are using—— 

Mr. SHIMKUS. Thank you—— 

Mr. STANISLAUS. Well, again, the Agency has made a statement 

and it doesn’t come under my jurisdiction. 

Mr. SHIMKUS. Thank you. The gentleman’s time has expired. 

We now recognize the gentleman from North Carolina for 5 minutes, Mr. Butterfield. 

Mr. BUTTERFIELD. Thank you, Mr. Chairman. And thank you, 

Administrator, for your testimony today. 

Continuing to improve our country’s recycling programs is an important issue for many of our colleagues, and certainly it is important for me. It is important for the district that I represent in eastern North Carolina. 

EPA currently reports the amount of materials recycled each 

year by collecting information made publicly available by recycling 

stakeholders and municipalities. The EPA has expressed interest in 

collecting more extensive data about recycling and has been soliciting public comments. And so I just wanted to say for the record 

that I look forward to working with the EPA to identify the most 

effective way to generate accurate and useful information to improve our recycling programs. 

I am also pleased the subcommittee is discussing agriculture, 

very important to my district, agriculture, which accounts for nearly $70 billion annually to North Carolina’s economy. I appreciate 

your testimony on this and other subjects as well. 

Let me just ask you, Administrator, let me start with this very 

quickly. Does EPA intend to take into consideration views of the 

54 

agriculture community and the other stakeholders when revising 

the rule? 

Mr. STANISLAUS. We are already in conversations with them, yes. 

So the answer is yes. 

Mr. BUTTERFIELD. All right. Can the EPA issue orders to require 

response for damaging releases of hazardous substances from manure using other statutes such as the Clean Air Act or the Clean 

Water Act, the Resource Conservation and Recovery Act or FIFRA? 

Are there other statutes that you can depend on? 

Mr. STANISLAUS. Not to conduct an immediate cleanup. 

Mr. BUTTERFIELD. You mentioned that manure is not a hazardous substance. You agree on that, is that correct? 

Mr. STANISLAUS. Say again. 

Mr. BUTTERFIELD. Manure is not a hazardous—— 

Mr. STANISLAUS. That is right. 

Mr. BUTTERFIELD [continuing]. Substance according to your definition. 

Mr. STANISLAUS. That is right. 

Mr. BUTTERFIELD. Is manure the only nonhazardous substance 

under the jurisdiction of the Superfund? 

Mr. STANISLAUS. Well, again, manure is not listed as a hazardous 

substance so I guess I am not clear about your question. 

Mr. BUTTERFIELD. Well, let me read it again. You mentioned that 

manure is not a hazardous substance. 

Mr. STANISLAUS. That is right. 

Mr. BUTTERFIELD. Is manure the only nonhazardous substance 

under the jurisdiction of CERCLA and EPCRA or do you have 

other examples? 

Mr. STANISLAUS. Well, again, as CERCLA is constructed, there is 

a list of hazardous substances so it could be a contaminant that is 

not a hazardous substance that we could use our authorities to do 

cleanup. 

Mr. BUTTERFIELD. Can EPA designate a farm a Superfund site 

in the future prospectively? 

Mr. STANISLAUS. As I have testified, that is not something we 

have done or plan to do again because manure is not a listed hazardous substance. 

Mr. BUTTERFIELD. That was in response to Mr. Dingell’s question 

earlier I believe? 

Mr. STANISLAUS. Yes. 

Mr. BUTTERFIELD. Are there any barriers in place that prevent 

the EPA from conducting more voluntary surveys about recycling? 

Are there any barriers? 

Mr. STANISLAUS. I don’t believe there are explicit barriers but 

there are procedures that we need to go through to collect information. 

Mr. BUTTERFIELD. Have you evaluated the usefulness of voluntary surveys? 

Mr. STANISLAUS. Well, yes. In fact, we in fact do that currently 

as part of our efforts. 

Mr. BUTTERFIELD. All right. I think I will stop right there. I yield 

back. Thank you. 

Mr. STANISLAUS. Thank you. 

Mr. SHIMKUS. The gentleman yields back his time. 

55 

The chair now recognizes the gentleman from Louisiana, Mr. 

Cassidy, for 5 minutes. 

Mr. CASSIDY. Hey, Mr. Stanislaus. How are you? 

Mr. STANISLAUS. Good, how you are doing? 

Mr. CASSIDY. I am good, thank you. 

I am interested in the recycling almost as a discussion of the 

topic because I am trying to understand it. It almost seems like it 

is such a moving target that you may take a snapshot of what recycling activity takes place, but if somebody suddenly puts a premium on aluminum cans, it is going to dramatically increase aluminum can recycling. And if that occurs just after your snapshot, 

then your data are dated. And I am saying that not to accuse or 

anything, just to kind of ponder. 

Similarly, I think I see in the bill that the use of recycled material to develop energy if you will, waste burning, is not included in 

the bill but if you have a cost differential that would say burn a 

plastic bottle for its potential energy as opposed to recycle, you are 

going to shunt one way versus the other. Does that make sense? 

Mr. STANISLAUS. Well, clearly those decisions are made on a regular basis today. 

Mr. CASSIDY. Correct. 

Mr. STANISLAUS. Yes, and it is based on the price value of 

reusing one direction or the other and commodity prices vary. So 

there is a regular shift based on that. 

Mr. CASSIDY. I don’t want to seem nihilistic, but it almost seems 

more important for you to look at the variables that would influence recycling than to do a particular measure of how much we recycle. 

Mr. STANISLAUS. Well, we do both, so really the intention of looking at materials more holistically as we are doing right now, it is 

to not only look at the historic recycle waste stream but really look 

at various industrial sectors and how to really maximize sometimes 

closed-loop, sometimes reengineering from third parties, so looking 

at recycling in the economy overall. 

Mr. CASSIDY. So I accept that. And so again it almost seems like 

the measuring at a point in time, what is happening, is far less important than helping a business optimize their use of recycled material to decrease marginal cost. Does that make sense? 

Mr. STANISLAUS. Well, I do think that partially makes sense but 

in our conversations—and I am sure you are going to hear from 

panelists later on—I think it is fair to say that numerous industrial 

sectors, as well as State and local governments in terms of really 

identifying the opportunities and how to put in place infrastructure 

and make decisions, they would welcome EPA’s data to help inform 

those decisions. 

Mr. CASSIDY. But you seem to be agreeing with me that if you 

wanted to have more use of something as opposed to going to a 

landfill, it doesn’t really matter as much to measure the amount 

going into the landfill as much as to measure the potential benefit 

from either burning it for energy combustion or for recycling at a 

certain given price. 

Mr. STANISLAUS. Well, I think we want to take a comprehensive 

look at the materials field. And so looking at what goes in a landfill 

is an indicator of success or failure and so if you track it over time, 

56 

you could see how effective your upstream actions have been. And 

have you in fact been successful in putting in place the kinds of 

programs so that industry can take advantage? So there is a net 

reduction to landfill. So I would argue that you need to have a full 

lifecycle of information and data. 

Mr. CASSIDY. I could almost see, though, that the price they are 

paying for aluminum cans would give you the same information. If 

there is a lot of aluminum cans, they are not paying very much, 

but if there are few, they are going to pay more for that which they 

get. 

That said, in your testimony you said that you would like to have 

the ability to require entities to produce certain information to 

make your analysis more robust I assume. I am just asking who 

would be required to produce this and what amount of information 

would they be required to produce and how onerous would be that 

requirement? 

Mr. STANISLAUS. Yes, you know, what I testified is where the 

proposed bill relies exclusively on voluntary information, I think 

exclusively relying on voluntary information inherently means that 

you will have some data gaps. So I would say it constrains the ability to meet the overall—— 

Mr. CASSIDY. I am almost out of time—— 

Mr. STANISLAUS. OK. 

Mr. CASSIDY [continuing]. But, again, I am concerned that we are 

going to put some small municipality under a great burden of reporting requirements. So who would be required and how much, 

how onerous would be the requirements? 

Mr. STANISLAUS. Well, I would say that where the greatest data 

sources are and where I think both the various aspects—the recycling industry and prospective recycling industry—would benefit is 

again a granular level of data from industry-to-industry recycling 

opportunities. So I will leave it all to—— 

Mr. CASSIDY. So not just municipal dumps but also a manufacturing outfit that leaves scrap metal on the floor? 

Mr. STANISLAUS. Well, that is where I see the greatest opportunity is the industry-to-industry opportunity. 

Mr. CASSIDY. OK, but still how onerous would it be? Do you see 

what I am saying? That is the key thing. 

Mr. STANISLAUS. Sure, that is a fair point. 

Mr. CASSIDY. Yes. 

Mr. SHIMKUS. The gentleman’s time is expired. I will tell you 

that as the chair of the Recycling Caucus, it is not industry who 

is—you don’t have to worry about recycling. They are going after 

everything and they leave nothing on the floor. And the importance 

of this debate is really the municipal side, what is being left on the 

table through the municipal waste stream. 

So Mr. Stanislaus, thank you for your time. As per tradition, 10 

days you may get additional questions submitted for the record. If 

you would reply based upon Members’ written questions during 

that period of time, we would appreciate it. 

Also, I would like to get a list of programs that receive voluntarily submitted information that the EPA has. You may—— 

Mr. STANISLAUS. On the recycling side? 

Mr. SHIMKUS. Overall. 

57 

Mr. STANISLAUS. I am sorry. Say that one more time. I am sorry. 

Mr. SHIMKUS. You stated in the question that there are programs 

in which you receive voluntary information so I would like to know 

what type of programs are getting voluntary information and how 

you are gathering that data and what it is used for. 

Mr. STANISLAUS. OK. 

Mr. SHIMKUS. And with that, seeing no other questions, you are 

allowed to leave. And we will empanel the third panel. Thank you 

for your time. 

Mr. STANISLAUS. Thank you. 

Mr. SHIMKUS. We want to welcome everybody. It almost felt a little schizophrenic bouncing back and forth between two bills. 

This third panel is based upon the recycling portion of the hearing, so we are happy to get back singularly focused. And with that, 

your full statements are submitted for the record. You will get 5 

minutes. 

I am going to welcome you all first and then we will go to you 

individually for your opening statements. 

With us on the third panel is Mr. Charles D. Johnson, Vice President, Environment, Health, and Safety of the Aluminum Association, Inc; also Ms. Lynn Bragg, President of the Glass Packaging 

Institute; Mr. Jonathan Gold, Senior Vice President, Recovery and 

Recycling Division of the Newark Group; and then Mr. John Skinner, Executive Director of the Solid Waste Association of North 

America. Again, we welcome you all. And we will start with Mr. 

Johnson for a 5-minute opening statement. 

STATEMENTS OF CHARLES D. JOHNSON, VICE PRESIDENT, ENVIRONMENT, HEALTH, AND SAFETY, THE ALUMINUM ASSOCIATION, INC.; LYNN M. BRAGG, PRESIDENT, GLASS PACKAGING INSTITUTE; JONATHAN GOLD, SENIOR VICE PRESIDENT, RECOVERY AND RECYCLING DIVISION, THE NEWARK 

GROUP, ON BEHALF OF THE PAPER RECYCLING COALITION; 

AND JOHN H. SKINNER, EXECUTIVE DIRECTOR AND CHIEF 

EXECUTIVE OFFICER, SOLID WASTE ASSOCIATION OF 

NORTH AMERICA 

STATEMENT OF CHARLES D. JOHNSON 

Mr. JOHNSON. Chairman Shimkus, Ranking Member Green, and 

members of the committee, thank you for this opportunity to testify. My name is Charles Johnson; I am the vice president of Environment, Health, and Safety with the Aluminum Association. We 

are the trade association representing U.S. aluminum producers, 

recyclers, and industry suppliers. On behalf of our industry, I 

would like to commend Congressman Sullivan for offering this 

draft bill and his continued efforts to increase recycling as a critical 

piece of U.S. energy and sustainability efforts. 

The U.S. aluminum industry believes this legislation is critical 

because recycling is a source of sustainable, private sector-driven 

green jobs; recycling is a vital part of energy efficiency and should 

be part our Nation’s energy solutions; and the collection of better 

waste and recycling data, facilitated by this legislation will allow 

consumers, policymakers, and industry to more rapidly achieve 

higher recycling rates. 

58 

In 2010, Americans recycled $1.6 billion in aluminum cans. If the 

industry’s beverage can recycling goal of 75 percent was achieved, 

the payback to American consumers would be $2.1 billion. Aluminum’s infinitely recyclable nature means scrap metal has high 

value, and the processing and recycling of the metal yields a significant impact on the economy and in job creation. 

Market trends are leading all recycling industries to take back 

more recycled materials but this material is not always available. 

At the same time, the American public is demanding more environmentally responsible solutions. Wal-Mart, Target, and many others 

are demanding increasingly sustainable packaging with higher environmental benefits. The demands for those benefits are part of a 

larger shift in consumer preferences and this is becoming as important to our industry as access to raw materials. 

Our industry views the Increasing Manufacturing Competitiveness through Improved Recycling Act of 2012 as a critical next step 

in advancing the practice of recycling and improving operating efficiency and environmental impact for the aluminum industry. Thirty-nine percent of consumers have said they are confused about 

what is good or bad for the environment. Quality data allows consumers, as well as industry and policymakers, to successfully examine new proposals and plans for improving recycling using facts 

and not suppositions. 

Aluminum recycling provides a massive opportunity for energy 

efficiency. The metallic, elemental nature of aluminum means that 

it is infinitely recyclable. It can be recycled over and over with no 

loss of quality or down-cycling. In fact, 75 percent of all aluminum 

ever produced since 1888 is still in use today. Recycling aluminum 

saves 95 percent of the energy and emits only 5 percent of the 

greenhouse gases associated with primary aluminum production. In 

the simplest form, our business case for recycling is based on the 

fact that increasing recycling increases energy efficiency. The aluminum industry’s position in favor of recycling is not green washing; it is green business. 

The most widely recognized application for aluminum is the beverage can. The aluminum can is the most recycled beverage container in America. In an average can, 68 percent is recycled content, the highest amount of any beverage container. In 2010, 58 

percent of aluminum cans were recycled in the United States. This 

bill, to improve our understanding of municipal recycling, is vital 

for our industry to bring consumer recycling in line with aluminum 

recycling in other sectors, which is greater than 90 percent. It will 

also be vital to help our understanding of how we might raise our 

can recycling rate to the level of other countries, many of which are 

in the area of 90 percent or higher. 

Our industry has established a goal of reaching a 75 percent aluminum can recycling rate by 2015. We are engaged in various initiatives, including establishing and funding a new organization 

called the Curbside Value Partnership with other materials manufacturers. CVP works with municipalities to increase consumer participation in existing recycling programs. Our evaluation of the program indicates that it routinely results in a 17 percent increase in 

household participation, translating into a 22 percent increase in 

tons of recycled materials. Data generation and analysis is a reVerDate Aug 31 2005 14:56 Jun 19, 2013 Jkt 037690 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 F:\11F7AA~1\112-15~1 WAYNE
59 

quirement for cities implementing this program and is a key to the 

program’s success. 

A robust material tracking and data gathering system is necessary because of the complexities of materials recycling value 

chains. For example, differences in material weights and scrap 

value complicate consumer behavior choices. Aluminum’s material 

characteristics of high strength to weight and corrosion resistance 

allow for uses that weigh less than other materials performing the 

same job. Then measuring recycling by comingled weight undercuts 

the full benefit of aluminum recycling to the environment and its 

subsidizing role in most curbside programs. This is just one of 

many considerations which improved municipal waste data could 

influence. 

The aluminum industry is committed to increasing recycling because it is good business and good for the environment and recycling efficiency should be a key consideration in our country’s energy strategy. For these reasons, the aluminum industry is ready 

to work with EPA to improve our understanding of the waste and 

recycling streams. 

There are many proposed solutions to increasing recycling in 

America, but industry and policymakers first need the best data 

possible to understand which method is best. 

I look forward to answering questions. I would thank the committee again and the chairman. And thank you. 

[The prepared statement of Mr. Johnson follows:] 

60 


81483.025

Chairman Shimkus, R,mking Member Green Dne! iv'lcmhers of the Suhcnmmittce on Environment 

and the Economy: 

IV1r. Chairman. thank you for the opportunity to testifY before this committee today. My name is 

Charles Johnson and I am the Vice President for Environmcnt, Health and Safety at The 

Aluminum Association. The Aluminum Association is a membership trade association 

representing l:.S, ~lIuminum pmduccrs, recyclers, and industry suppliers. ! am rcsponsih!c Cor the 

Association·$ dlixts to limit the impact of nul' industry on the environment \vhile increasing the 

positive impacts \)n the economy. 

Before moving further with my statement. on behalf of industry I want to commend 

Congressman Sullivan 1(1!' offering this draft bill and his continued efforts to increase recycling 

as a critical piccc or u.s. energy and slistainability efforts. 

The U.S. aluminum industry believes this legislation is critical because: 

• Recycling is a source of sustainable, privatc sector driven grccnjobs: 

• Recycling is a vita! part of energy cflicicllcy and should be part of our nation's energy 

solutions: 

The collcctinl1 or better waste and recycling datn. fllCilitnted b.y this legislation \vi!! allow 

consumers, policy makers and industry to mon; rapidly achj~vc a higher ;'ccycling rate; 

and 

Increasing ree)cling \-vill further bcnelit industry, improve sustainability. contribute to 

our country's energy efficiency gnals, decrease solid \vaslc in landfills. and create jobs. 

[n 20! O. Americans recycled $1.6 billion in aluminum cans. If the i!ldustry's bc\'cragt: can 

recycling goal of' 75 pcrc~nt was achieved, the payhack to American consumers \\ould he $2.1 

hiHion. Aluminum's infinitely recyclable nature means scmp metal has high vulue, and the 
61 


81483.026

processing and recycling of the metal yields a significant impact on the economy and injob 

creation. Because aluminum recycling saves encrgy, rccyclingjobs arc green jobs. 

Marketing trends arc leading all recycling industries to take more recycled materials but this 

material is not always available. The American public is demanding morc environmentally 

responsible solutions. Wal-Mati. Target and many others are dcmanding increasingly sustainable 

packaging with higher environmental bencJits. The demands for those benellts are part of a 

larger shift in consumer preferences for our products. This shift is becoming as important to 

industry as access to raw materials. 

Our industry views the "increasing Manufacturing Competitiveness through Improved Recycling 

Act of 20 12" as a critical next step in advancing the practice of recycling, and improving the 

operating efficiency and environmental impact of the aluminum industry. Gathering basic data 

that is not currently available is critical for understanding the current recycling situation in 

America. In 1990. 39% of consumers said they were confused about what was good and bad for 

the environment. Quality data allows consumers. industry and policymakcrs to sliccesstlilly 

examine new proposals and plans for improving recycling using facts. and not suppositions. 

The U.S. aluminum industry is a great example of an industry providing a positive economic 

impact while mitigating negative environlllental impacts. In 2009. 87 percent oftbe energy 

consumed by the North American aluminum industry was onset by energy saving achieved 

through the lise of aluminum to make automobiles and light trucks more fuel efficient. 

Similarly, in 2009. 92 percent (lfthe aluminum industry's cumulative greenhollse gas emissions 

could be considered to be offset from GIlG emissions reductions achieved by increasing 

aluminum content in the transport sector. Automotive aluminum represents only 26 percent of 

North ;\mcrican sector shipmcnts. Aluminum's usc in other sectors. including building and 

construction. consumer durables, electrical wiring and packaging imparts greater energy and 

emissions saving through the material's use-phase and helps to neutralize energy usage and 

emissions by the industry. 
62 


81483.027

The metallic. elemental nature of aluminum means that it is inllnitely recyclable. It can be 

recycled over and over with no loss of quality. In fact. 75 percent of all aluminum ever produced 

since 1888 is still in usc today. Recycling aluminum saves 95 percent of the energy and emits 

only 5 percent of the greenhouse gases associated with primary aluminum production. 

Therefore. aluminum recycling provides a massive oPPOliunity f()r energy efficiency. The 

recycling of one aluminum can saves enough energy to power a I OO-watt light bulb ftl!' four 

hours. In the aluminum industry. recycling directly translates to energy saving. The metal of a 

beverage container can be thought of as solid cnergy and recycling saves that energy each time it 

is re-used instead of burying it in a landfill. 

In the simplest form, the business case for increasing aluminum recycling is based on (he fact 

that increasing recycling will increase energy cfTicicncy. The aluminum industry'S position in 

favor of recycling is not green washing: it's green business for us. 

Over the last twenty years, the North American industry has decreased energy usage 17 percent 

and greenhouse gas emissions 42 percent for primary production. During the same period, 

recycling energy requirements and greenhouse gas emissions have gone down about 60 percent. 

Based on our interactions with recycling experts. waste haulers and municipal recycling 

facilities. we know that better information leads to more efficient recycling that maximizes 

environmental gain and material efficiency, while minimizing collection and reclamation costs. 

The most widely recognized application for the aluminum is the beverage can. The can is the 

most rccycled beverage container in America. In an average aluminum can, 68 percent is 

recycled content: the highest amount of any beverage container. The metal's inllnitc 

recyclability and high value means a beverage container goes n'om recycling bin and back to 

store shelves in less than 60 days. 

In 2010.58.1 pel'cent ofalul11inum cans were recycled in the United States. This bill. to improve 

our understanding of municipal recycling, is vital for Ollr industry to bring conSlllller recycling in 

line with aluminum recycling in other product sectors, which is greater than 90 percent. It will 
63 


81483.028

also be vitallO help our understanding of how we might raise our recycling rate to the level of 

other countries many of which arc in the 90 percent level or higher .. more than 35 percentage 

points higher than that of the US. 

The aluminum industry has an established goal of reaching a 75 percent aluminum can recycling 

rale by 2015. We arc engaged in various initiatives including establishing and funding a new 

organization called the Curbside Value Partnership with other material manufacturing 

organizations and makers of packaging products. Curbside Value Partnership works with 

municipalities to increase consumer participation in existing recycling programs. Our evaluation 

orthe program indicates that it routinely results in a 17 perccnt increase in household 

participation, translating into a 22 percent increase in tons of recycled materials. Data generation 

and analysis, a requirement that must be carried out as part of the program, is a key to that 

success. Cities must implement a tracking system to better understand what material is coming 

back and re-introduced into a new lIscfullifc: this is a critical part of the program. 

;\ robust material tracking and data gathering system is necessary because of the complexities of 

materials recycling value chains. For example, differences in material weights and scrap value 

complicate consumer behavior choices. Aluminum's material characteristics of high strength to 

weight and corrosion resistance allow ttlr uses that weigh less than other materials performing 

the same job. Measuring recycling by cominglcd weight undercuts the full benefit ofaluminUI11 

recycling to the environment and its subsidizing role in most curbside programs. 

The aluminum industry is committed to increasing recycling because an increased recycling rate 

is good for business and good for the environment. Recycling is key to the sustainability of the 

aluminum industry in an economic and environmental context. Recycling efficiencies should 

also be a key consideration in our country's energy strategy. For thesc reasons, the aluminum 

industry is ready to work with EP;\ to improve our understanding of the waste and recycling 

streams. 
64 


81483.029

A more robusl11nderstanding of the quantity ofmatcrials in the solid waste stream provides 

industry und policymakcrs with the most appropriate data to develop solutions to increasing the 

U.S. recycling rate. 

There are many proposed solutions to increasing recycling in America but industry and 

policymakers need data to best understand which method is best. 

I look forward to answering your questions and the Aluminum Association stands ready to assist 

the Committee in exploring ways to advance our country's recycling goals. 
65 

Mr. SHIMKUS. Thank you. 

And now I would like to have Ms. Lynn Bragg. Thank you again 

for appearing and you are recognized for 5 minutes. 

STATEMENT OF LYNN M. BRAGG 

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

Green, members of the subcommittee. I am Lynn Bragg, President 

of the Glass Packaging Institute, representing the North American 

glass container manufacturing industry. Thank you again for inviting me. 

After hearing EPA testify, some of you may be wondering why 

this bill is needed. Explaining how we make glass containers I 

think will help answer that need. 

Glass is originally made from sand, soda ash, and limestone. The 

raw materials are melted together at extremely high temperatures 

in a glass furnace creating molten glass that is formed into beer, 

wine, and food and beverage containers. New glass containers also 

can be made from recycled glass or cullet. When we make new containers by adding cullet, we can operate our furnaces at a much 

lower temperature, reducing our energy use and emissions. 

In terms of production, approximately 25 billion glass containers 

were made in the United States in 2010. Our member companies 

can make over 3 million beer bottles a day at a single plant. At 

each of the 48 glass container plants in 22 States, recycled glass 

energy savings keeps our plants competitive against increasing 

global competition, helps the plants comply with Clean Air Act regulations, and keeps 18,000 people employed in high-paying salaried 

and hourly jobs. 

GPI member companies use cullet on a daily basis and compete 

heavily to buy it. Understanding the data behind the recycled glass 

we purchase and from which recycling system it comes from is a 

critical need for our industry. We know the majority of Americans 

are committed to recycling. As manufacturers, we rely on their voluntary efforts. There is a good chance that you recycle using the 

green or the blue bin. Have you ever wondered where the 

recyclables end up? We believe most people do and the same is true 

for the manufacturing industries that purchase these recyclables. 

Currently, EPA issues a report on municipal solid waste generation, recovery, and disposal. In that report, EPA estimates the total 

amount of recyclables entering the municipal waste stream and the 

total amount recovered. However, EPA defines recovery as materials removed from the waste stream for the purpose of recycling. 

For glass, EPA also counts as recovery uses such as roadbed construction. Just collecting materials or using materials as roadbed 

is very different from the actual recycling of glass into new containers and other products such as fiberglass. 

Based on EPA’s current reports, we have a rough idea of how 

many glass containers are collected. Glass plants know how much 

recycled glass they buy. We know that there is a big difference between those numbers. And right now, what happens between collection and actual recovery by a manufacturer is a black box. We 

don’t know what happens to the material that gets lost along the 

way. We suspect that much of it becomes what the recycling indusVerDate Aug 31 2005 14:56 Jun 19, 2013 Jkt 037690 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 F:\11F7AA~1\112-15~1 WAYNE
66 

try calls residue, material lost to manufacturers after spending 

time and money collecting and sorting that material. 

Again, why are we talking to Congress about this issue? Isn’t recycling a State and local issue? We emphatically agree that it is 

but we also believe the Federal Government has a role in collecting 

and disseminating data. For example, the Commerce Department 

through the U.S. Census reports vital data on the production and 

sale of goods. That doesn’t mean it regulates those activities. 

We think that EPA can play an important role in recycling by 

collecting information and making it available to everyone. With 

new data points on recycling that consider manufacturing and markets, State and local governments can evaluate different options for 

recycling. Municipalities may want to tailor their recycling contracts to reach different outcomes, and industry may find opportunities to form partnerships to recover more recyclable materials collected. 

Manufacturers frequently meet with States, local governments, 

the solid waste industry, brand owners, and environmental groups, 

and the need for better recycling data is frequently discussed. In 

fact, I am attending such a meeting today. We all share the goal 

of increasing recycling, but the first asked typically involves information, what do we know, what we don’t know. 

While the Discussion Draft doesn’t allow EPA to force organization to respond to information requests, we think EPA will get a 

better response than if industry were asking the questions. We 

know EPA will not get perfect information but it will be an improvement. Right now, EPA issues their MSW report without an 

approved information collection request under the Paperwork Reduction Act. That means by law EPA can only ask nine people for 

information. This draft does not waive the Paperwork Reduction 

Act, but by requiring EPA to collect better data on recycling, EPA 

can go to OMB and get approval for an ICR, be able to ask more 

than nine people for information, and produce a report that will 

help all of us better understand our municipal recycling programs. 

I would also note that the draft is only intended to address the 

MSW recycling stream and not the industrial pre-scrap. 

Thank you. I would be happy to answer any questions. 

[The prepared statement of Ms. Bragg follows:] 

67 


81483.030

Testimony of lynn M. Bragg 

President 

Glass Packaging Institute (GPI) 

Increasing Manufacturing Competitiveness Through 

Improved Recycling Act of 2012 

U.S. House of Representatives Energy & Commerce 

Committee 

Subcommittee on Environment and Economy 

June 27, 2012 

Chairman Shimkus, members of the Subcommittee, I appreciate the 

opportunity to testify today in strong support of draft legislation that 

would assist manufacturers, states, localities and other stakeholders 

in better understanding existing recycling data and related recycling 

collection systems, through a cooperative effort to voluntarily provide 

information to EPA. Recycling is a critical component of the glass 

container manufacturing process and is essential to numerous other 

industries. 

The Glass Packaging Institute (GPI) is the North American trade 

association for the glass container manufacturers, glass recyclers, 

and suppliers of materials, equipment and transport to the industry. 

GPI member companies operate the vast majority of the 48 glass 

1 
68 


81483.031

container plants located in 22 states, and also represent dozens of 

glass recycling facilities. Our membership manufactures over 28 

billion food and beverage containers annually, all of which are 100% 

and endlessly recyclable, suitable for use in the manufacture of a 

new glass container. To support its manufacturing activities, the 

glass container industry provides approximately 18,000 direct, highly 

paid salaried and hourly jobs in its glass container plants, warehouses 

and sales forces ... along with thousands more in our supplier 

companies across the U.s. 

As an "Energy Intensive, Trade Exposed" industry, GPI member 

companies continue to be focused on preserving U.S. jobs by 

improving global competitiveness, reducing foreign energy 

dependency and supporting improved materials management models, 

many of which currently face serious economic and performance 

challenges. 

GPI member companies are strongly impacted by the outputs of the 

municipal solid waste (MSW) and recycling streams. A top priority for 

2 
69 


81483.032

GPI is to divert and recycle glass containers currently in the MSW 

stream-rather than commit those valuable commodities to 

perpetual, wasteful loss by being buried in landfills--- and to ensure 

that as many containers as possible are re-utilized in the production 

of new packaging. 

When glass plants can increase the levels of recycled glass as part of 

the overall batch mix, they can reduce furnace temperatures, 

resulting in reduced energy use and lower greenhouse gas emissions. 

Utilizing recycled glass enables our industry to compete 

internationally, by allowing us to produce containers more efficiently. 

The inclusion of recycled materials reduces energy and emissions for 

other energy intensive manufacturing industries. 

For example - energy costs drop about 2-3% for every 10% recycled 

glass used in the manufacturing process. For every six tons of 

recycled container glass used, a ton of carbon dioxide, a greenhouse 

gas, is reduced. A relative 10% increase in recycled glass reduces 

particulates by 8%, nitrogen oxide by 4%, and sulfur oxides by 10%. 

3 
70 


81483.033

The discussion draft the Subcommittee is considering appropriately 

does not institute recycling goals, prescribe particular recycling 

programs for communities or set minimum content rates. GPI does 

not support federal regulation of recycling. However, GPI, along with 

other packaging based industries and companies have established 

goals to increase the use of recycled materials in the manufacturing 

process. Success in achieving these goals is largely dependent on 

the strength of the recovery systems that generate recycled materials 

used by the industry and as important, understanding where the 

recyclables collected through these programs end up. 

Accordingly, GPI members are vigorously engaged at the local, state 

and federal levels to improve collection systems, improve the 

usability of quality of recyclables for manufacturers and better link 

collection systems with end markets. 

Many states and communities already issue reports on the outcomes 

of their recycling initiatives. However, most of these entities report 

4 
71 


81483.034

what is being collected, but not the final disposition of recyclable 

materials. 

There is a widespread consensus on the need for improving existing 

data on recycling at both the stakeholder and agency levels. In its 

FY2012 budget justification for Environmental Program & 

Management account, EPA stated as follows: !fEPNs current 

measurement approach, as reported in the annual Municipal Solid 

Waste Characterization Report, has been based on an approach, 

assumptions, and methodology developed decades ago." "Currently, 

EPA is re-examining the data sources, methods, and assumptions 

used to estimate U.S. materials throughout their life cycle". Last 

August, EPA solicited comments on how to improve its current report 

but has yet to respond to comments. In September 2011, an EPAconvened stakeholder group issued a report that recognized the 

critical need for better data on recycling. However, we are unaware 

of any follow-up actions EPA plans to take. In December 2011, in the 

2012 Interior-Environment Appropriations Act, Congress directed EPA 

to report to Congress on the development of a process to collect 

5 
72 


81483.035

additional data on the recovery rates achieved by the variety of U.S. 

recycling programs. That report was due on March 22, 2012, but has 

not yet been submitted and, even when it is complete it will only 

identify a process; the report will not start any actual improvements 

to data collection. 

The discussion draft would require EPA to take action to address the 

problem of inadequate recycling data. Specifically, the discussion 

draft requires EPA to more effectively utilize existing data on 

collection of recyclable materials, already being reported by states 

and communities, and to seek additional data to identify the recovery 

of those same materials, broken down by type of collection system. 

This information will allow states, communities and other 

stakeholders to evaluate the effectiveness of recycling programs. In 

particular, these data will allow stakeholders to understand what 

happens to recyclable materials after collection. 

The EPA MSW Report currently reports out data on glass 

generation/production and glass "recovery" rates. Recovery of glass 

6 
73 


81483.036

is now defined in the Report as the reuse of glass in a manufactured 

product (such as a new container) as well as one-time applications, 

including its use in roadbed aggregate. The distinction and 

understanding the difference in what is recovered for use in 

manufactured products, and those utilized as part of roadbed 

aggregate and other similar applications is very important to our 

industry. 

This discussion draft requests EPA, in conjunction with stakeholders, 

to distinguish "recovery", by identifying recyclables recovered for 

reuse by manufacturing industries versus other final disposition- a 

critical distinction for the glass container industry. 

Under the discussion draft, EPA would collect data through an 

information collection request (ICR). Under the Paperwork Reduction 

Act, agencies are limited to contacting 9 entities on any given 

particular subject if they don't have an approved ICR. EPA does not 

currently have an approved ICR to collect data for its Municipal Solid 

Waste Characterization report so that report is based on 

7 
74 


81483.037

extrapolations from a few surveys and published reports. A mandate 

from Congress to collect data will help EPA obtain approval of an ICR 

from the Office of Management and Budget. An ICR gives EPA 

authority to ask questions. Neither an ICR nor the discussion draft 

would give EPA authority to compel answers. 

While the information collected under the discussion draft will be 

voluntary submittals, it is our belief that states, communities, local 

governments, numerous manufacturing, processing and other 

industries will consider submitting data on recycling (including 

aggregated data from trade associations) that the EPA could utilize, 

making this Congressional effort extremely worthwhile. 

Importantly, this legislation is judiciously limited and focused in 

scope; the bill would improve the understanding of the recycling data 

- however, as stated, it specifically prevents the EPA or any other 

federal agency from mandating specific recycling programs, collection 

systems, minimum-content requirements, or establishment of any 

recycling goals in this Act. We believe that decisions on recycling 

8 
75 


81483.038

programs remain appropriately determined at the local and state 

levels, where they can be tailored to meet local needs and 

circumstances. 

Ultimately, this legislation will provide important and new data paints 

on the results of recycling systems, while at the same time, provide 

additional insight and information to decision makers at the local 

level, as they choose a recycling program that is right for their 

community. 

In closing, I want to express our thanks and gratitude to 

Congressmen John Sullivan and Dan Boren and their staffs, for their 

diligent efforts in working with the glass industry and other 

stakeholders in crafting legislation that would provide significant 

assistance to the country's manufacturing industries. 

Thank you again for the opportunity to testify on this legislation. 

Please consider the GPI as both a resource and advocate for 

9 
76 


81483.039

recycling. If you have any questions or if we can provide you 

additional information we would be happy to respond. 

10 
77 


81483.040

Increasing Manufacturing Competitiveness Through Improved Recycling 

Act of 2012 Glass Packaging Institute (GPI) - Testimony Summary 

• This important discussion draft would assist manufacturers, states, and 

other stakeholders in better understanding existing recycling data and 

related recycling collection systems - Specifically, it would allow EPA to 

reach out to a variety of stakeholders to improve their Municipal Solid 

Waste (MSW) Report by placing a larger focus on the important role 

manufacturers play in the recycling arena. 

• When glass container manufacturers increase the levels of recycled glass 

as part of the overall batch mix, they reduce furnace temperatures, 

resulting in reduced energy use and lower greenhouse gas emissions. 

• As an "Energy Intensive, Trade Exposed" industry, GPI member 

companies are focused on preserving U.S. jobs by improving global 

competitiveness, reducing foreign energy dependency and supporting 

improved materials management models. 

• The discussion draft does not institute recycling goals, prescribe particular 

recycling programs for communities or set minimum content rates. GPI 

and member companies will continue to work independently (and without 

federal mandate) to increase their use of recycled materials. 

.. Many states and communities already issue reports on the outcomes of 

their recycling initiatives. However, most of these entities report what is 

being collected, but not the final disposition of recyclable materials 

collected. As the manufacturing industries are a critical end market for 

recyclable material, a better understanding of the recycling systems is 

needed. 

.. There is widespread consensus on the need for improving existing 

recycling data on recycling at both the stakeholder and agency levels. 

.. Ultimately, this legislation will provide important and new data points on 

the results of recycling systems, while at the same time, provide additional 

insight and information to decision makers at the local level, as they 

choose a recycling program that is right for their community. 
78 

Mr. SHIMKUS. Thank you very much. 

Now, I recognize Mr. Jonathan Gold. Sir, you are recognized for 

5 minutes. 

STATEMENT OF JONATHAN GOLD 

Mr. GOLD. Thank you, Chairman Shimkus, Ranking Member 

Green, and members of the committee. My name is Jonathan Gold. 

I am the senior vice president of the Recovery and Recycling Division of the Newark Group. The Newark Group is one of the oldest 

100 percent recycled paperboard companies in the United States. 

This year, we are celebrating our 100th anniversary. In 1916, my 

grandfather started the North Shore Recycled Fibers paper recovery plant in Salem, Massachusetts, but I swear I haven’t been with 

the company that long—only about 35 years—but paper recycling 

is in my blood. 

I want to thank the committee for the opportunity to present the 

views of the Paper Recycling Coalition on the importance of data 

collection for recovered materials. 

The PRC is comprised of 10 companies who manufacture 100 

percent recycled paperboard and containerboard—basically cereal, 

cake boxes, game boards, construction tubes, corrugated boxes and 

beverage containers. PRC member companies operate over 400 facilities in 42 States employing over 50,000 American workers in 

well-paying jobs. 

Recycling reduces the need for new landfills, saves energy, creates jobs, reduces greenhouse gas emissions, conserves natural resources, and supplies valuable raw materials to American industry. 

It is the last point that brings me here today. 

Despite the well noted growth of electronic media, the demand 

for recycled paper products is increasing every year. Our society 

continues to be paper-intensive for numerous reasons, including a 

rising demand for packaging. Recovered paper is the only ‘‘raw’’ 

material that can be used by the 100 percent recycled paper industry, and by doing so, we are extending the fiber supply. Our raw 

material comes from homes, offices, and businesses all across this 

country. Each State is responsible under the Resource Conservation and Recovery Act, known as RCRA, for municipal solid waste 

(MSW) programs and the systems for collection vary widely from 

State to state and from municipality to municipality, producing 

vastly different results. 

For more than 20 years, EPA has been generating an annual report on the Characterization of Municipal Solid Waste. It currently 

details how much MSW is collected and how much is diverted. 

However, that report has never been able to disclose how much of 

that diverted material is actually reaching the manufacturers who 

can turn it into a new product and how much all of these recycling 

efforts are benefiting our society. 

Let me give you an example from my own personal experience. 

In the State of Massachusetts, which reports a 39 percent municipality recycling rate, the material that comes into our mill has a 

contamination level as high as 15 to 18 percent because of broken 

glass, plastic bottles, plastic bags, and steel cans, for example, as 

well as other unmentionables. When you factor in wet weather, 

this level can be as high as 22 percent on a day-to-day situation. 

79 

To a large extent this is caused by single-stream collection, a 

curbside collection process that allows for all material to be collected in one bin versus separating paper from all other collected 

material. This material is still counted by the Commonwealth as 

recycled. What is too contaminated for us to recycle in our mills 

ends up at the landfill casting serious questions on the ‘‘true’’ recycling rate. Improved data would help us get a better handle on the 

problem in order to identify solutions. 

We know that there is a great deal more that can be done to improve basic collection. For example, every 2 weeks, we could fill 

Fenway Park in Boston to the top with paper that is not recovered 

for recycling. That is raw material and jobs that we will never see 

due to the inefficiencies in the collection system. 

The paper industry has done an astonishing job of increasing the 

recycling rate for paper 81 percent over the past 20 years so that 

now we are collecting 66.8 percent of all the paper available for recycling. However, with an ever-increasing domestic and international demand, we need better data tools to identify the paper 

that we are not currently accessing in order to stimulate U.S. job 

growth. 

The data collection bill under consideration today would focus 

EPA’s attention on the material that is actually recovered for reuse 

in manufacturing. This material is the bulk work of our business 

and essential to maintain our position as a vital and vibrant American industry. 

In the current economic climate, municipalities are struggling to 

maintain funding for material collection. We understand their problems and this proposal will not add to their burden. We want to 

be part of the solution to that problem, but we need better data in 

order to target our approach to increasing collection. 

We support this basic principle of this bill but remain adamantly 

opposed to any government mandates on the private sector because 

they distort market outcomes and efficiencies. 

Mr. Chairman, this concludes my oral testimony. I would ask 

that the committee consider my written testimony on this matter 

on behalf of the Paper Recycling Coalition. I would be happy to answer any questions from members of this committee. Thank you. 

[The prepared statement of Mr. Gold follows:] 

80 


81483.041

Hearing Before the Energy and Commerce Committee 

Subcommittee on Environment and the Economy 

U.S. House of Representatives 

Mr. Jonathan Gold 

Senior Vice President - and Recycling Div. 

The Newark Group 

June 27, 2012 

Mr. Chairman and Members of the Committee, 

My name is Jonathan Gold and I am the Senior Vice President of the Recovery 

and Recycling Division of The Newark Group. The Newark Group is one of the 

oldest 100% recycled paperboard companies in the United States. This year we 

are celebrating our 1 OOlh anniversary. In 1916 my grandfather started the North 

Shore Recycled Fibers paper recovery plant in Salem, Massachusetts, but I 

swear I haven't been with the company that long only about 35 years - - but 

paper recycling is in my blood. 

I want to thank the Committee for the opportunity to present the views of the 

Paper Recycling Coalition on the importance of data collection for recovered 

materials. 

The PRe is comprised of ten companies who manufacture 100% recycled 

paperboard and containerboard - basically cereal, cake boxes, game boards, 

construction tubes, corrugated boxes and beverage containers. PRC member 

companies operate over 400 facilities in 42 states employing over 

50,000 American workers in well-paying jobs. 
81 


81483.042

Recycling reduces the need for new landfills; saves energy; creates jobs; 

reduces greenhouse gas emissions; conserves natural resources and supplies 

valuable raw materials to American industry. It is this last point that brings me 

here today. 

Despite the well-noted growth of electronic media, the demand for recycled paper 

products is increasing every year. Our society continues to be paper intensive for 

numerous reasons including a rising demand for packaging. Recovered paper is 

the only "raw" material that can be used by the 100% recycled paper industry 

and by so doing we are extending the fiber supply. Our raw material comes from 

homes, offices and businesses all across the country. Each state is responsible 

under the Resource Conservation and Recovery Act (RCRA) for municipal solid 

waste (MSW) programs and the systems for collection vary widely from state-tostate and from municipality-to-municipality, producing vastly different results. 

For more than 20 years, EPA has been an annual report on 

the .><.!.!"""-",-"",,,-,-,,,,,,,",,,Y.!.!.~=~~,-,-,,,="-!.~~. It currently details how much 

MSW is collected and how much is diverted. However, that report has never 

been able to disclose how much of that diverted material is actually reaching the 

manufacturers who can turn it into a new product and how much all of 

these recycling efforts are benefiting our 
82 


81483.043

Let me give you an example from my own personal experience: In the state of 

Massachusetts, which reports a 39% municipal recycling rate, the material that 

comes into our mill has a contamination level as high as 15 to 18% because of 

broken plastic bottles, plastic bags, and steel cans for example, as well as 

other unmentionables, When you factor in wet weather this level can be as high 

as 22% on a day-to-day situation. 

To a large extent this is caused by Ip_<,trp"m collection, a curbside collection 

process that allows for all materia! to be collected in one bin vs. separating paper 

from all other collected material. This materia! is still counted by the 

Commonwealth as "recycled". What is too contaminated for us to recycle in our 

mills ends up at the landfill casting serious question on the 'true' recycling 

rate. Improved data would help us get a better handle on this problem in order to 

identify solutions. 

We know that there is a great deal more that can be done to improve basic 

collection. For example every two weeks, we could fill Fenway Park in Boston to 

the top with paper that is not recovered for recycling. That's raw material and 

jobs that we will never see due to inefficiencies in the collection system. 

The paper industry has done an astonishing job of increasing the recycling rate 

for paper 81 % over the past 20 years so that now, we are collecting 66.8% of all 

the paper available for recycling. However, with an ever-increasing domestic and 
83 


81483.044

international demand, we need better data tools to identify the paper that we are 

not currently accessing in order to stimulate U.S. job growth. 

The data collection bill under consideration today would focus EPA's attention on 

the material that is actually recovered for reuse in manufacturing. This material is 

the bulwark of our business and essential 10 maintain our position as a vital and 

vibrant American industry. 

In the current economic climate, municipalities are struggling to maintain funding 

for material collection. We understand their problems and this proposal will not 

add to their burden. We want to be part of the solution to that problem, but we 

need better data in order to larget our approach to increasing collection. 

We support the basic principles of this bill, but remain adamantly opposed to any 

government mandates on the private sector because they inevitably distort 

market outcomes and efficiencies. 

Mr. Chairman, this concludes my oral tAe't1m,,,,,,, I would ask that the committee 

consider my written testimony on this matter on behalf of the Paper Recycling 

Coalition. I would be happy to answer any questions from Members of the 

Committee, 

Johnny Gold 
84 

Mr. SHIMKUS. Thank you very much. 

The chair now recognizes Mr. John Skinner from the Solid Waste 

Association of North America. Sir, 5 minutes. 

STATEMENT OF JOHN H. SKINNER 

Mr. SKINNER. Thank you. Good morning. Mr. Chairman, members of the committee, it is a pleasure for me to be testifying here 

about the importance of recycling of solid waste. It is a strategy 

that has significant environmental energy efficiency and economic 

benefits. We strongly support recycling and we reviewed the draft 

discussion legislation and have some comments that we would like 

to make about it. 

Let me just tell you a little bit about who I represent. Our members, 8,000 of them, are the people that collect, process, recycle, 

and dispose of municipal solid waste across the country. They are 

the professionals that are on the frontline carrying out those programs. Thirty-five percent of them work for the private sector; 65 

percent of them work for the public sector and we have 45 chapters 

in North America. 

Our mission is professional development of our members—education, training, scholarships, networking, certification, and publications and we provide our members with the tools necessary to do 

their jobs the best way throughout the year. 

Recycling is very important to our members. It is environmentally and economically sound and we provided an extensive 

array of programs for our members in the areas of recycling. I have 

listed some of those programs in my testimony and in the interest 

of time I am not going to go over them, but it is a wide range of 

training, education, certification, research, and publication programs. 

Turning now to the draft legislation, we certainly agree that the 

manufacturing sector can increase its competitiveness, it can reduce its energy cost, reduce its emission levels, and improve the 

amount of materials that are diverted from landfills through the 

increased use of recycled materials. That is a goal that we entirely 

support. And we acknowledge that increasing energy efficiency in 

the manufacturing sector can increase employment, including higher-paying jobs. And we acknowledge also that recycled materials 

are perfectly acceptable feedstocks to produce new materials and 

products. 

It is important that the data specified in the bill lead to increased use of recycling, and communities have many variables 

that they consider, but the key determinants of whether they recycle a material or ship it for recycling are cost and revenues. It is 

an economic decision and I am sure you all know the situation that 

our local governments are in these days with respect to their tax 

revenues and their economics. 

We agree that improved data are very important and more informed decision-making by policymakers will help private sector 

users of recyclables increase their understanding of what recyclable 

materials might be available. We also agree that the report called 

for under Section 4 of the draft bill would provide very detailed and 

very useful information at a level of detail which is not available 

now and we think that that is extremely good goal. 

85 

We had three areas of concerns that we raised: the time frame 

for collecting this data, the cost estimate for collecting it, and the 

authorities that will be necessary to obtain that data. We have 

seen the changes that have been made in the current draft of the 

bill and we think they go a long way in that direction. The 2-year 

time frame is much better than the earlier time frame that was indicated, and the fact that the authorization would be an annual authorization and not a 1-year authorization annual over 3 years 

would also be a very important direction to move in. 

I also heard Administrator Stanislaus say that he thought that 

$800,000 a year and longer than 2 years was necessary, and I 

think that we should listen to his reasons for that. There might be 

some very good reasons for that. Tracking the flow of materials 

throughout the economy from collector to broker to manufacturer 

could be a difficult task and could take considerable resources. 

Finally, whether this type of information can be obtained from 

voluntary information requests and existing published data is questionable to obtain it at this level. I am not saying we shouldn’t try, 

but we may come up short and not get the type of information that 

we need and we might need to go back and look at other options. 

And we recommend that the committee consider ways of obtaining 

that information and increasing voluntary information submittals. 

And we do recognize the fact that this bill would provide EPA 

with the authority to conduct more wide-scale surveys, would give 

them the ability to go and get approval of those surveys under the 

Paperwork Reduction Act, but the question is here how to increase 

the response rates. So let me say we would be pleased, my association would be very pleased to work with EPA on this effort and we 

would encourage our members to cooperate with it. We believe the 

information would be very useful and helpful to both the suppliers 

and the users. 

Thank you, Mr. Chairman, be happy to answer any questions. 

[The prepared statement of Mr. Skinner follows:] 

86 


81483.045

Statement of John H. Skinner, Ph.D. 

Executive Director and CEO 

The Solid Waste Association of North America (SWAN A) 

Hearing on Recycling Legislation 

House of Representatives Energy and Commerce Committee 

Subcommittee on Environment and Economy 

June 27, 2012 

I am pleased to testify before this Committee on the importance of recycling of solid waste 

materials as a strategy that has significant environmental, energy efficiency and economic 

benefits. The Solid Waste Association of NOlih America (SWANA) strongly supports recycling 

and is very pleased that the U.S. Congress is exploring ways to expand recycling nation-wide. 

We have reviewed the discussion draft legislation, Increasing Manufacturing. Competitiveness 

Through Improved Recycling Act of 2012, and believe that having Congress recognize the 

importance of recycling and its contributions to the economy and environment is very significant. 

SWANA is a not-for-profit professional association operating under Section 501 (c)(3) of the 

Internal Revenue Code. We have over 7,800 individual members, 65 percent from the public 

sector and 35 percent from the private sector; and 45 Chapters in the United States and 

Canada. We provide our members with extensive professional development opportunities 

including training, education, certification, networking, scholarships, internships, research and 

publications. 

SWANA's mission is to advance the practice of environmentally and economically sound 

management or municipal solid waste in North America. Since recycling is often both 

economically and environmentally sound, and is a preferred technology for managing municipal 

solid wastes, it is an essential part of SWANA's professional development efforts. 

A brief listing of SWANA's recycling programs include: 
87 


81483.046

Cutting edge training programs with courses targeted toward recycling professionals 

including courses on Managing Recycling Systems and Managing Recycling of 

Construction and Demolition Materials. 

A Certification Program where individuals can demonstrate their competence and 

expertise in various aspects of recycling. 

A Recycling and Special Waste Technical Division, one of the largest technical divisions 

at SWANA, that works to promote state-of-the-art approaches to recycling through 

conferences, symposia, newsletters, and which provides the faculty for our training 

courses. 

An Excellence Awards Program that recognizes outstanding solid waste and recycling 

programs that utilize effective technologies and processes in system design and 

operations, advance worker and community health and safety, and implement 

successful public education and outreach programs, 

An Applied Research Foundation that produces research reports on various recycling 

and solid waste topics that have reached tens of thousands of solid waste management 

professionals through articles in industry magazines and journals, 

An Advocacy Program that represents the interests of solid waste and recycling 

professionals by being a proactive advocate of environmentally and economically sound 

recycling and solid waste management legislation and regulations. 

Now turning to the discussion draft legislation, we certainly agree that the manufacturing sector 

can increase its competitiveness, reduce its energy costs and emission levels and improve 

landfill diversion through an increase in the use of recyclable materials in its manufacturing 

processes, Increased energy efficiency in the manufacturing sector can increase domestic 

2 
88 


81483.047

employment, including higher paying jobs. It is clear that recyclable materials are perfectly 

acceptable feed stocks to produce new materials and products. 

It is important that the data specified in the bill lead to increased use of recycled materials in 

manufacturing. Communities have many variables to consider when determining where there 

recyclables will be marketed, however the key determinants are costs and revenues. We do 

recognize the limitations of the current recycling data, and agree that improved data would lead 

to more informed decision-making by policy makers, and help the private sector users of 

recyclables increase their understanding of what recyclable materials may be available. 

The report that would be developed by EPA in consultation with the Departments of Energy and 

Commerce under Section 4 of the draft Bill would provide very detailed and useful information 

on the amounts of various materials actually diverted by various collection systems, the 

amounts recycled by manufacturers, and the amounts disposed of by landfills. We have three 

cautionary areas of concem: the time frame for collecting this data, the cost estimate for the 

data collection effort and the authorities that would be provided to the agency to accomplish this 

task. 

Two hundred and seventy days seems to be a very short time to produce this information, 

especially if new surveys are necessary. The coordination with other agencies and public and 

private recycling programs, along with putting in place survey documents and contracts to carry 

out the work, will require significant time even before the work can begin. Furthermore, the 

authorization of $499,000 for these purposes may not be sufficient. To obtain information 

regarding tonnage by collection type and destination may require surveys carried out at the 

municipal level. Tracking the flow of materials from collector to broker, to processor, to 

manufacturer could be a difficult task. The costs would depend on the number and extent of 
89 


81483.048

any new surveys that were needed. Finally, whether this type of information cim be obtained 

from voluntary information requests and existing published data is questionable. We suggest 

that the Committee consult with EPA on the schedule and budget, and consider incentives that 

would significantly increase voluntary information submittals. We do recognize that this bill 

would provide EPA with the authority to conduct more wide-scale voluntary surveys, but the 

question is how to increase response rates. 

In conclusion, let me say that SWANA would be pleased to work along with EPA on this effort, 

and we would encourage our members to cooperate with it, because we believe that the 

information would be useful and very helpful to both the suppliers and users of recycled 

materials. 

I would be happy to answer any questions. 

4 
90 

Mr. SHIMKUS. Thank you, Mr. Skinner. 

Now, I will recognize myself for the first 5 minutes. 

And I will start with, you know, just the basic observation: Recycling is good for everybody. There is really no downside. So the 

question stems from in the new Congress, the new House specifically, we are trying to shy away from Federal mandates, mandating things. And so part of this bill, my understanding, is obviously getting the EPA to collect information but a voluntary system. So a question is do you think the Discussion Draft, when introduced, should mandate Federal recycling, recycling systems, or 

recycling goals? Mr. Johnson, briefly if you can. 

Mr. JOHNSON. No. We believe actually that those solutions do 

exist. There are many of them, and this bill does exactly what it 

should, which is to collect more information and reevaluate the way 

we analyze that data so that we can make those decisions after 

that fact. 

Mr. SHIMKUS. Great. Ms. Bragg? 

Ms. BRAGG. I agree with Mr. Johnson. The Discussion Draft and 

future legislation should not prescribe or mandate recycling programs at the Federal level. It shouldn’t be mandating anything. 

Mr. SHIMKUS. Mr. Gold, you sounded a little impassioned about 

this in your opening statement. Do you concur? 

Mr. GOLD. Absolutely not. It is not practical or economical. 

Mr. SHIMKUS. OK, great. Mr. Skinner? 

Mr. SKINNER. Certainly not at this stage. There are a lot of 

things that can be done to increase recycling short of going that 

far. 

Mr. SHIMKUS. Do you support any Federal mandates or regulation as a way of increasing recycling? 

Mr. JOHNSON. Not at this time. We don’t have enough information to know what those programs would look like and how they 

would affect our industry and our material stream. 

Mr. SHIMKUS. Ms. Bragg? 

Ms. BRAGG. No. 

Mr. SHIMKUS. Mr. Gold? 

Mr. GOLD. No. 

Mr. SHIMKUS. Mr. Skinner? 

Mr. SKINNER. Not regulations or legislation but I think the Federal Government can play a very significant leadership role in encouraging people to do these types of activities. 

Mr. SHIMKUS. And let me just follow up on that because obviously in the opening statement it seems like everybody is pretty 

supportive, I think. Mr. Skinner, you were raising some concerns 

but not, ‘‘Stop, no way.’’ And as I mentioned earlier, I am co-chair 

of the Recycling Caucus. One of the reasons why was to make sure 

that on the corporate side people really understood how much is recycled there and it is really a solid waste issue. 

Good data could help us answer one question that perplexes 

me—single-source versus multiple bins. And Mr. Gold, you raised 

the contaminated or tainted material in a single source issue. But 

the reality is we don’t know nationally how much is lost. There is 

no way we can provide information to local communities or you all 

to say single source is good because, my observation, more people 

find it easier to put everything in a single bin. Simplicity helps. So 

91 

there may be more generated recyclable material but then we forget about that portion that may be tainted and thrown out. But we 

don’t know that answer. Is that correct? 

Mr. JOHNSON. That is absolutely correct. That is one of the problems that we have pointed out repeatedly and we cite the need for 

a study of this type. We need to know more about what is happening to the material between collection and reclamation. 

Mr. SHIMKUS. Ms. Bragg? 

Ms. BRAGG. That is absolutely correct. Mr. Johnson’s answer is 

perfect really. We have the same issue. 

Mr. SHIMKUS. And you are with the glass recyclers, is that right? 

Ms. BRAGG. Yes. 

Mr. SHIMKUS. So I toured the waste-to-energy plant across the 

river, which is another huge option. They are very successful in 

even reclaiming some of the metals, but glass, I think, melts and 

that is one thing that if it is a single source goes to waste-to-energy, I don’t think the glass portion is recoverable. Do you know 

anything about the waste-to-energy and do you lose all that? 

Ms. BRAGG. I would have to do some additional searches on 

waste-to-energy in terms of glass, but just in terms of recycling, if 

the glass isn’t collected properly, it does break into very many 

small pieces and usually gets entangled with paper and other liquids and becomes a big mess. 

Mr. SHIMKUS. Is colored glass a challenge anymore for your sector or—— 

Ms. BRAGG. No. 

Mr. SHIMKUS. No. 

Ms. BRAGG. No. 

Mr. SHIMKUS. Mr. Gold? 

Mr. GOLD. Nationally, no, but internally with our own company 

we know it is 10 to 15 to 18 percent contaminants from single 

stream. It is unscrambling the scrambled egg. 

Mr. SHIMKUS. Right. Yes. Mr. Skinner? 

Mr. SKINNER. Yes, the important thing is to understand why municipalities go for single-stream or single sort. It is an economic decision. It makes collection of the material much less costly and collection is 80 percent of your costs of managing of wastes. If you 

have to send down multiple trucks to pick up multiple streams or 

you have sorting by the collector, the collection is much more expensive. You can put it all in one container. It reduces the collection cost if you can collect it automated. So that is the reason that 

they are moving in that direction. But I do acknowledge that when 

you do that, you have to be very, very careful about your materials 

recovery facility and sort out the contaminants so that the products 

that you are producing are valuable. 

Mr. SHIMKUS. And I will end on that. But I guess my final point 

is I think centralized voluntary information is better than no information to start making these decisions either from the municipal 

waste collection side or the folks who want to be end users of recycled products. There is a gap there of things we don’t know. And 

so I am very interested in this process and we will follow it forward 

with great consultation with my friend, Mr. Green, who I would 

like to recognize for 5 minutes for questions. 

92 

Mr. GREEN. Thank you, Mr. Chairman. Again, I thank our panel 

for being here. 

This question is for anyone on the panel. Many States and communities already issue reports on the outcomes of their recycling 

initiatives. Is there a reason this type of survey cannot be attached 

to those current reporting regimens? 

Mr. JOHNSON. Are we still going in order? 

The first reason is scope and scale. Many municipalities attack 

their questions about their municipal material streams at the local 

level and answer those questions. Industries need information 

about the national and international movement of our materials 

and the material flow. 

Mr. GREEN. OK. Anybody else? Is that pretty well everyone is 

agreed? 

What makes you think that voluntary responses to the EPA 

would differ from an initiative that your associations could jointly 

initiate? I know, for example, I represent five refiners and they cooperate all the time on surveys. It is pretty regular. Would that be 

any different than what your associations would cooperate on? 

Ms. BRAGG. Speaking for the glass industry, we do have our own 

internal surveys but the type of information that we are looking for 

in terms of this gap is something that we couldn’t do alone in 

terms of our own industry because we are really looking for additional information where we can get a better handle on the end 

markets. And we also need to know the gap in the middle, what 

is happening to it, and that is very difficult for us. We wouldn’t be 

able to handle that on our own. 

Mr. GREEN. But a good example, Mr. Skinner represents the 

group of recyclers and when somebody brings in—they bring in 

glass, they bring in paper—and in the case of city of Houston 

where I live they bring in e-waste that, you know, you have to separate from everything else. It seemed like that the cooperation you 

could get a lot of this good information, you know, with your associations doing it with the folks who actually are picking up and are 

the receiver of those recyclable items. 

Ms. BRAGG. You are making a very good point but many of us 

are involved in groups that are seeking answers to why we aren’t 

getting more recycled material back. We are working cooperatively 

together but we really do feel that if the government, if EPA could 

request this additional information we are asking for, we would 

have a better overall picture than trying to piece it all together 

ourselves. 

Mr. GREEN. OK. Mr. Skinner, you represent a huge number of 

groups—I assume municipalities but also private recyclers like—— 

Mr. SKINNER. That is correct. 

Mr. GREEN [continuing]. In my area in incorporated Houston 

Waste Management has a recycling program that a community 

may decide because it typically increases their cost to do that, so 

you represent both private and public entities? 

Mr. SKINNER. That is correct. 

Mr. GREEN. When your members pick up that waste, I assume 

they divide it up or do they just have the different associations that 

specialize in it. You know, does a glass person come in and get your 

glass or aluminum person come in or paper? 

93 

Mr. SKINNER. It generally goes to a facility after it is collected 

and depending upon how it is collected, it may need to be sorted 

further and sorted considerably if it is collected as comingled. And 

then it is basically baled and goes to a broker and the broker would 

take it to the ultimate end markets. So there is a process where 

they work through the existing scrap markets to get that material. 

In response to your prior question, I think there is good data 

from the trade associations on how much material is being used 

and how it is being used within their manufacturing. The data that 

is limited is the supply side, what is coming out of the municipalities and how much more could come out of municipalities. That 

data is available. Some of it is on Web sites and a good data collection effort could get it and bring it all together. You might not get 

a complete national picture but I think working on the supply side 

is important. 

Mr. GREEN. Let me ask in my last 30 seconds I have a real interest in e-waste and I partner with the city of Houston on a number 

of these e-waste events. And Mr. Johnson, you talked about the end 

user because I know a lot of my scrap paper is actually sent overseas. I don’t worry about how they dispose of scrap paper as much 

as I am how they are doing and it has been very publicly, internationally how some countries take e-waste and literally it is a 

danger to the folks that do it. I want to be able to track that. 

And I know that is not today’s hearing but, Mr. Chairman, somewhere along the way I would like to see how we track what e-waste 

is picked up now and how it is tracked to where we know what is 

being done with it. And I appreciate the time. 

Mr. SHIMKUS. The gentleman’s time is expired. 

The chair recognizes the gentleman from Colorado, Mr. Gardner, 

for 5 minutes. 

Mr. GARDNER. Thank you, Mr. Chairman. And I know my colleague and I and Mr. Latta from Ohio have a number of issues in 

common in terms of concerns when it comes to recycling and the 

facilities that we have in our districts—bottle manufacturing and 

glass manufacturing, glass packaging—and so, Ms. Bragg, I will direct a couple of questions your way. In your testimony you claim 

that better recycling will help energy-intensive manufacturers reduce their energy costs and greenhouse gas emissions. How does 

the bill that we are discussing today fit with that goal? How does 

it relate to international competition and job preservation right 

here in the United States? 

Ms. BRAGG. Thank you for the question. When a glass manufacturer uses cullet instead of raw materials to make glass, we can 

operate our furnaces at lower temperatures. So once the cullet has 

already been melted into glass, it is much easier to melt it again. 

And lower temperatures mean less energy use. The glass industry 

relies mostly on natural gas to run our furnaces and less energy 

use means lower emissions. And they are, of course, directly related. 

All of this helps us compete internationally and keep jobs here 

in the U.S. As you would expect, profit margins are slim and glass 

companies compete for customers by lowering their prices, but you 

can’t set your prices so low that the company stops making money. 

And then if that happens, you have to close your doors and people 

94 

lose their jobs. And unfortunately, some of our members have lost 

customers to foreign glass plants, which really don’t operate under 

the same regulatory environment that we have here in the U.S. 

So we need to do everything we can to cost-effectively keep our 

energy costs and air emissions down. And really using cullet instead of those raw materials to make glass really helps us achieve 

those goals. 

Mr. GARDNER. And one thing I didn’t realize until visiting the 

manufacturing facility is the importation of recycled glass into the 

country. Is that still occurring regularly? 

Ms. BRAGG. You know—— 

Mr. GARDNER. Within the country, excuse me, like from, you 

know, taking recycled glass from California to Colorado to meet 

needs at the plant there. 

Ms. BRAGG. Yes, absolutely. Cullet is transported from unbelievable locations to be used in a glass manufacturing plant thousands 

of miles away. 

Mr. GARDNER. And the EPA believes that the bill requires that 

it sample every single community and recycling facility in the 

United States. Do you agree with that assessment? 

Ms. BRAGG. No, we do not. I mean even right now the EPA uses 

statistical sampling and extrapolation of data and we don’t believe 

they would have to go to every single municipality across the 

United States. 

Mr. GARDNER. Thanks. And you mentioned that the information 

collection request in your testimony, what is that and why does 

that matter? 

Ms. BRAGG. Well, as I mentioned in my testimony, the information collection request is under the Paperwork Reduction Act, and 

it limits the amount of people you can ask for that information. So 

again with just nine people the reports are estimates that are really extrapolated from a few surveys. And it is my understanding 

that the EPA has not even tried to get an information collection request to request any recycling data like the data we are asking for 

in the Discussion Draft. So again the Discussion Draft doesn’t 

waive the Paperwork Reduction Act but it does require EPA to collect information in accordance with an ICR. So they would then 

have to put together the survey, seek public comment, submit the 

surveys to OMB, and given the legislation, we would expect OMB 

to approve the surveys. So they would be able to ask more people 

than just nine. 

Mr. GARDNER. Thank you, Ms. Bragg, and I yield back my time. 

Mr. SHIMKUS. Would the gentleman yield for his last 50 seconds? 

Mr. GARDNER. Absolutely. 

Mr. SHIMKUS. We are a market-based competitive majority in the 

House right now. And why wouldn’t just the purchases of recycled 

goods send a price signal? There will be a break point where adding the recyclable material to your production process is profitable 

based upon EPA regs, energy costs, and the like, and when it is 

not. I will have to get an answer to this question for my colleagues. 

Why wouldn’t a price signaled by you all on the cost of an input 

product send a signal we want more recycled cans? We want more 

recycled glass. We want more recycled paper. Why isn’t that working? 

95 

Mr. JOHNSON. I would make two points. First is because that signal is not received by the disparate end users of the products who 

are the first step in recycling the material. So the average household is not recycling aluminum cans because they can get back the 

individual monetary value of each of those cans. They are doing it 

because it is the right thing to do for the environment and because 

it is an available service in their community. 

The second point I would make is that those price signals are 

being sent through our economy. Each year, the aluminum that is 

produced in the United States is almost half recycled material and 

we have a shortage still of material coming into our processes. So 

we are sending that signal but the first and possibly the second 

step of the scrap stream is never going to receive that signal. 

Mr. SHIMKUS. Ms. Bragg, same? 

Ms. BRAGG. I can’t really speak directly to price. Our industry is 

especially very wary of antitrust. We really abide very strictly by 

the antitrust regulations, so individual companies could respond to 

that. I know as individual companies, they work every day with recyclers and processers. 

Mr. GOLD. I think in the paper side the two major grades that 

are recovered are corrugated and residential mixed papers, and we 

are way over 70, almost 80 percent recovery rate on those two. 

There is not a lot more that can be recovered unless you go into 

the landfills and start to pull back. 

Mr. SHIMKUS. Mr. Skinner? 

Mr. SKINNER. If the price signal is strong enough and if there are 

contracts for the long-term, municipalities will put in the collection 

programs to get that material out. And that is what needs to be 

done. It has to be a program that you can’t turn on and off municipal recycling. It has to be something that you sustain over a period 

of time. 

Mr. SHIMKUS. Great. Well, we appreciate your testimony and 

thank you for your time. 

And with that, we will empanel the fourth panel. Thank you. 

We welcome the fourth panel, and I will do as I did with the 

third panel, introduce you all at one time and then ask you to give 

your opening statements. So with us is Ms. Susana Hildebrand, 

Professional Engineer, Chief Engineer, Texas Commission on Environmental Quality. And we want to welcome you. Mr. Water Bradley, Director of Government and Industry Relations with the Dairy 

Farmers of America, and having the largest dairy county in the 

State of Illinois, I particularly welcome you. 

Mr. BRADLEY. Great. 

Mr. SHIMKUS. It is not huge but it is the largest. 

Mr. Ed Hopkins, Director, Environmental Quality Program with 

the Sierra Club, sir, welcome back. 

And with that your full statements are in the record. As always, 

you have 5 minutes and we would like to start with you, Ms. 

Hildebrand. 

96 

STATEMENTS OF SUSANA M. HILDEBRAND, CHIEF ENGINEER, 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY; WALTER BRADLEY, GOVERNMENT AND INDUSTRY RELATIONS 

REPRESENTATIVE, DAIRY FARMERS OF AMERICA; AND ED 

HOPKINS, DIRECTOR, ENVIRONMENTAL QUALITY PROGRAM, 

SIERRA CLUB 

STATEMENT OF SUSANA M. HILDEBRAND 

Ms. HILDEBRAND. Good afternoon. Again, my name is Susana 

Hildebrand and I am the chief engineer at the Texas Commission 

on Environmental Quality. Thank you for the opportunity to speak 

today. 

The Texas Commission on Environmental Quality regularly 

weighs matters that affect the environment and economy. Decisions 

made by the TCEQ are based on the law, common sense, good 

science, and fiscal responsibility. The Superfund Common Sense 

Act, H.R. 2997, is also based on these principles. This hearing is 

not about whether manure should be regulated. Animal agricultural operations that produce manure are already adequately regulated under other environmental laws such as the Federal Clean 

Water Act and Clean Air Act, as well as State-specific authorities 

in Texas—the Texas Water Code and Texas Clean Air Act. 

The question is whether additional regulatory burdens of 

CERCLA are necessary for manure. H.R. 2997 would remove the 

question from the purview of the courts and EPA ensuring that resources dedicated to CERCLA are used to address the problems 

that Congress had intended. 

The Comprehensive Environmental Response, Compensation, 

and Liability Act (CERCLA), as amended by the Superfund Amendments and Reauthorization Act (SARA), authorizes Federal cleanup 

of releases of hazardous substances, imposes liability for cleanup, 

and provides restoration or replacement of natural resources affected by a release. CERCLA defines a hazardous substance as a 

substance designated under various acts, including the Clean Air 

Act and the Clean Water Act. 

CERCLA also specifies reporting requirements when specific 

quantities of hazardous substances are released into the environment. CERCLA Section 103(a) excludes, ‘‘federally permitted’’ releases, including discharges addressed through a National Pollutant Discharge Elimination System (NPDES) permit from the release notification requirements of CERCLA. This exclusion is appropriate because effective regulatory and enforcement mechanisms 

already exist under the applicable laws, including the Clean Water 

Act and the Clean Air Act. 

Specific agricultural operations, such as the confined animal 

feeding operations (CAFOs), are already regulated under the 

NPDES program and the Texas Pollutant Discharge Elimination 

System (TPDES program) in Texas. TPDES permits regulate discharges from CAFOs; they include best management practice requirements for manure management. With regard to air emissions, 

facilities in Texas are subject to the Texas Health and Safety Code, 

through the Texas Clean Air Act, and must be authorized prior to 

construction. 

97 

In considering issuance of a permit, the TCEQ considers possible 

nuisance odors and addressing handling and storage of manure. 

Violations of State law or agency regulations, including odor and 

nuisance conditions, are subject to enforcement. Congress should 

make it clear that current environmental laws are adequate and 

that regulation under CERCLA is not necessary. 

Moreover, as the United States EPA describes in its Superfund 

Web site, the CERCLA law was enacted following the discovery of 

high-risk toxic waste dumps such as Love Canal in New York and 

Times Beach in Missouri in the 1970s. Also, according to EPA, 

‘‘this law created a tax on the chemical and petroleum industries 

and provided broad Federal authorities to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment.’’ CERCLA was never intended to address the removal or cleanup of agricultural sites that 

are comprised of manure created by biological processes, as defined 

by H.R. 2997. 

The CERCLA and the Federal Superfund program have had tremendous benefit in cleaning up legacy pollutants from some of the 

Nation’s worst toxic waste sites. Applying CERCLA to agricultural 

operations that produce manure is not consistent with its original 

intent and will likely result in the diversion of Federal, State, and 

local resources away from the cleanup of sites that contain hazardous substances and truly present the most significant risks to 

human health and the environment. Manure clearly does not fit 

into this category. 

Regulating manure as a hazardous substance would be unduly 

burdensome to business owners who by and large manage manure 

properly. Congress should make it clear that manure is not a hazardous substance regulated under CERCLA. If Congress does not 

act to exclude manure, then it will allow the courts or EPA to define CERCLA applicability, resulting in ambiguous, duplicative, 

and inappropriate requirements to other mechanisms already available to State regulators charged with the mission of protecting 

human health and the environment. There is no additional benefit 

to regulating manure under CERCLA as there are regulatory programs already in place to address environmental concerns. 

The facts are clear: stringent requirements meant for truly hazardous substances, such as those imposed under CERCLA, should 

not apply to manure. 

[The prepared statement of Ms. Hildebrand follows:] 

98 


81483.049

U.S. House of Representatives 

Energy and Commerce Committee 

Subcommittee on Environment and the Economy 

H.R. 2997 "The Superfund Common Sense Act" 

·PQ1hrr.rmv of Susana M. Chief of the 

The Texas Commission on Environmental Qnality (TCEQ) regularly weighs matters 

that affect the environment and economy. Decisions made by the TCEQ are based 

on the law, common sense, good science, and fiscal responsibility!. The Superfund 

Common Sense Act, H. R. 2997, is also based on these principles. This hearing is not 

about whether manure should be regulated. Animal agricultural operations that 

produce manure are already adequately regulated under other environmental laws, 

such as the federal Clean Water Act and Clean Air Act, as well as state-specific 

authorities such as the Texas Water Code and Texas Clean Air Act in Texas. The 

question is whether the additional regu latory burdens of CERCLA are necessary for 

manure. H.R. 2997 would remove the question from the purview of the courts and 

EPA, ensuring that resources dedicated to CERCLA are used to address the problems 

that Congress had intended. 

CERCLA 

The Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA), as amended by the Superfund Amendments and Reauthorization Act 

(SARA), authorizes federal cleanup of releases of hazardous substances, imposes 

liability for cleanup, and provides for restoration or replacement of natural resources 

affected by a release. CERCLA defines a hazardous substance as a substance 

designated under various acts, including the Clean Air Act and the Clean Water Act. 

CERCLA also specifies reporting requirements when specific quantities of hazardous 

substances are released to the environment. CERCLA §lo3(a) excludes, "federally 

permitted" releases including discharges addressed through a NPDES permit from 

the release notification requirements of CERCLA. This exclusion is appropriate 

because effective regulatory and enforcement mechanisms already exist under 

applicable laws including the Clean Water Act (CWA) and the Clean Air Act. Specific 

agricultural operations, such as confined animal feeding operations, are already 

regulated under the NPDES Program and the Texas Pollutant Discharge Elimination 

System (TPDES) in Texas. TPDES permits regulate discharges from CAFOs and 

include best management practiee requirements for manure management. With 

regard to air emissions, facilities in Texas are subject to the Texas Health and Safety 

Code, through the Texas Clean Air Act, and must be authorized prior to construetion. 

In considering issuance of a permit, the TCEQ considers possible nuisance odors and 

addressing handling and storage of manure. Violations of state law or agency 

lTexas Commission on Ellvironnlental Mission and Philosophy 
99 


81483.050

regulations, including odor and nuisance conditions, are subject to enforcement. 

Congress should make it clear that current environmental laws are adequate and that 

regulation under CERCLA is not necessary. 

Moreover, as the United States Environmental Protection Agency (EPA) describes on 

its Superfund website, the CERCLA law was enacted following the discovery of highrisk toxic waste dumps such as Love Canal in New York and Times Beach in Missouri 

in the 1970s.2 Also according to the EPA, "This law created a tax on the chemical and 

petroleum industries and provided broad federal authority to respond directly to 

releases or threatened releases of hazardous substances that may endanger public 

health or the environment."3 CERCLA was never intended to address the removal or 

cleanup of agricultural sites that are comprised of manure ereated by biological 

processes, as defined by H.R. 2997. 

CERCLA and the federal Superfund program have had tremendous benefit in 

cleaning up legacy pollutants from some of the nation's worst toxic waste sites. 

Applying CERCLA to agricultural operations that produce mauure is not consistent 

with its original intent and will likely result in the diversion of federal, state, and 

local resources away from the cleanup of sites that contain hazardous substances and 

truly present the most significant risks to human health and the environment. 

Manure clearly does not fit into this category. 

Conclusion 

Regulating manure as a hazardous substance would be unduly burdensome to 

business owners who by and large manage manure properly. Congress should make 

it clear that manure is not a hazardous substance regulated under CERCLA. If 

Congress does not act to exclude manure, then it will allow the courts or EPA to 

define CERCLA applicability, resulting in ambiguous, duplicative, and inappropriate 

requirements to other mechanisms already available to state regulators charged \\1th 

the mission of protecting human health and the environment. There is no additional 

benefit to regulating manure under CERCLA as there are other regulatory programs 

already in place to address environmental concerns. The facts are clear: stringent 

requirements meant for truly hazardous substances, such as those imposed under 

CERctA, should not apply to manure. 

Superfund CEReLA Overview 
100 

Mr. SHIMKUS. Thank you very much. 

Now, I would like to recognize Mr. Bradley for 5 minutes. 

STATEMENT OF WALTER BRADLEY 

Mr. BRADLEY. Thank you, Mr. Chairman, members of the committee. 

I am former New Mexico Lieutenant Government Water Bradley, 

and today, I am here to represent the 15,000 farmer owners of 

Dairy Farmers of America. And we are in strong support of H.R. 

2997. This measure will once and for all affirm that the very small 

livestock manure that is used to fertilize our Nation’s organic crops 

is not a hazardous or toxic substance under Superfund. 

The last few years have posed extraordinary challenges for producers across the country but especially in my region where a majority of feed is imported from other regions. And in 2009 and 2010, 

our producers dealt with a very volatile milk price and input costs, 

a supply-and-demand imbalance, and other world factors which 

drove down the price of milk and our operating margins. Many lost 

a generation’s worth of equity while others left the business. In 

New Mexico, most every one of our survivors had to take on more 

debt. 

Prices, feed costs, supply-demand fluctuations, and weather are 

all things farmers cannot always control. The uncertainty that 

these and other factors bring to the industry is startling, but one 

thing we can deliver, that we should be delivering to our dairymen 

is regulatory surety. I ask this committee to do just that, specifically make clear the intent of Congress to not regulate manure 

under CERCLA and EPCRA. We are not seeking an exemption 

from the Federal Clean Water Act or the Clean Air Act or similar 

State laws including any Federal or State worker protection laws. 

We are merely seeking clarification under CERCLA and EPCRA 

that animal manure does not necessitate an emergency response, 

nor does it create a Superfund site. 

It should also be pointed out that both CERCLA and EPCRA include exemptions for animal operations. The example of the definition of hazardous chemical under CERCLA excludes any substance 

to the extent it is used in agriculture operations. Without this clarity, the courts can and ultimately will be left to redefine the regulation. And some lawyers have already jumped on this bandwagon. 

In fact, in 2009, the Middleton Law Firm in Georgia and the Spear 

Law Firm in Missouri formed the Center to Close and Expose Animal Factories and have filed numerous lawsuits around the country on all sizes of farms. 

I don’t believe Congress ever intended for manure to be regulated 

as a hazardous substance, and recent history demonstrates that 

Congress understands the value of manure to America and has encouraged its creative use. Laws have been passed and initiatives 

undertaken to encourage rural America to participate in the renewable energy field through the development of on-farm energy production by producing biogas, electricity, and biodiesel derived from 

manure. This very Congress has acknowledged manure’s value by 

funding research, passing tax credits and mandates for its use. 

How can we possibly ask dairy producers to invest millions of dollars in technologies to support the Nation’s energy needs without 

101 

addressing the threat that manure will be classified as a hazardous 

substance? 

And how are organic farmers going to fertilize their crops? Government regulations forbid the use of manufactured fertilizers. Besides being used for bioenergy production, manure is frequently 

spread on fields for fertilizer. This simple, long-standing, and environmentally respectful practice is threatened by the insecurity surrounding manure’s possible regulation under CERCLA. Conversely, 

I find it interesting that petroleum-based fertilizers, the alternative 

to the naturally occurring fertilizer, are exempt from these laws. 

In closing, I would like to point out that animal agriculture operations are subject to a vast array of Federal, State, and local environmental laws and authority to deal with every conceivable environmental problem presented by them. They include the Clean Air 

Act; the Clean Water Act; the Resource Conservation Recovery Act; 

the Toxic Substance Control Act; FIFRA; soil conservation, dust, 

and odor mitigation controls; as well as nuisance laws, which have 

all been applied broadly throughout the country to provide environmental protection from every conceivable aspect of animal agriculture operations. 

In New Mexico, we have the Ground Water Protection Bureau, 

the Surface Water Bureau, the Air Quality Bureau, and a set of 

New Mexico dairy rules for permitting of all dairies in addition to 

all the federal rules and regulations I mentioned above. 

There has been no indication that environmental laws such as 

these are inadequate and we certainly don’t need another layer of 

duplicative regulatory actions. I hope Congress addresses this issue 

and makes clear their original intent that manure from animal agriculture is exempt as a CERCLA hazardous substance, and I commend Congressman Long for his leadership on this issue and hope 

to soon see H.R. 2997 passed and signed into law. 

Thank you, Mr. Chairman, members of the committee, for this 

opportunity. 

[The prepared statement of Mr. Bradley follows:] 

102 


81483.051

Statemcnt of 

Walter Bradley. Dairy Fanners of America. Inc. 

To The I louse Committce on and Commerce 

Subcommittee on Environment the Economy 

Regarding !l.R. 2997. the Superfund Common Sense Act 01'20 II 

June 27. 2012 

Mr. Chairman. members of the Committee. my name is Walter Bradley. f currently work in 

government and business relations at Dairy Farmers of America. Inc. (DPA) in the sOUlhwcst 

council. which includes New Mexico, and portions of Tcxas, Oklahoma, Kansas and Arizona. In 

this capacity I work directly with New Mexico state legislators and state cnvironmental agencies 

on legislation and regulations. After a 4 year el1ort, we have recently completed passing 

comprehensive dairy rules that included agreement betwcen industry. government and 

environmental groups in the state. I also work directly with dairy producers in various business 

efforts including energy audits and anaerobic digesters. whose feedstock is manure. for on-farm 

energy production. Formerly. I served as a state senator and lieutenant governor 1,')1' the great 

state of New Mexico. and J have a great understanding and appreciation of public service for our 

country. 

I am testifying today on behalf of the 15.000 farmer-owners of DrA. who raise their herds 

and their tiunilies in 48 states across the in strong support of [LR. 2997. H.R. 2977 wili 

once and lor ali affirm that the very same livestock manure used to fertilize our nation's organic 

crops is not a ha7urdous or toxic substance under Superfund. 

DFA's members are diverse in size. thought and farm management. They are ali similar. 

however. in that they are proud stewards of the land who understand quality feed and quality 

milk comes Irom land that is respected and well cared for. Additionally, DFA 's members and 

the manure generated Irolll their herds are already regulated by state and federal law. 

I have the pleasure 

dairy herd is larger than the average dairy nationally_ 

and state is the eight largest producer of the milk. While farms are large in our state, 

are owned and run by families who live and work on their farms. Most support several 

members and are multi-generational. 

The last few years have posed extraordinary challenges for prodUcers across the country. but 

especially in my region. where a majority of fecd is imported from other regions. In 2009 and 

part 01'201 O. our producers dealt with very volatile milk prices and input costs. a supplyidemand 

imbalance, and other world nlctors, \vhich drove down price and operating margins. Many lost a 

wonh of equity while others left the business. In New Mexico. most took on more 
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This year, we are facing another low margin cycle, Some in our area are still paying fbI' feed and 

other bills acquired during 2009, Since January of this year, we have lost 21 dairies in the area 

and 5 in New Mexico specifically with several on the cusp of exiting the business, Prices, feed 

costs. supply/demand tluctuations and weather, are all things farmers cannot always control. The 

uncertainty that these and other factors bring to the industry is startling. 

One thing we can deliver that we should be delivering to our dairymen is regulatory surety. I 

ask this committee to do just that. Bring certainty to the nation's dairy farmers on the treatment 

or manure, a resource and potential source of income, under the Comprehensive Environmental 

Response, Compensation and Liability Act (CERCLA) and Emergency Planning and 

Community Right to Know Act (EPCRA) regulation. 

Specifically. make clear the intent of Congress to not regulate manure under these laws. We arc 

nO{ seeking an exemption from the federal Clean Water Act (CWA) or the Clean Air Act (CAA) 

or similar state laws any federal or state worker protection laws. We are merely 

emergency response nor docs it create a Superfund site. 

Congress created the Superfund to deal specifically with the prohlem of cleaning lip toxic waste 

sites, including hazardous materials such as petrochemicals. inorganic raw materials and 

petrolcum oil used to make hazardous products and waste. At the same tillle, EPCRA was 

adopted to require the reporting of releases of hazardous cheillicals and to enable emergency 

responses from governmental authoritics when necessary, The composition and usc of animal 

manure by farmers does not meet the threshold of being considered a hazardous waste. 

It should also be pointed out that both the CERCLA and EPCRA include exemptions for animal 

operations. For example the definition 01' a "hazardous chemical" Linder CERCLA excludes "any 

substance to the extent it is used in agriculture operations". At the same time, EPCRA 

specifically exempts "any substance to the extent that it is used in routine agricultural operations 

or is a fertilizer held for sale by a retailer to the ultimate customer from the definition of being a 

hazardous chemicaL" 

CERCLA was passed in the wake of Love Canal for the purpose of dealing with the "legacy of 

hazardous substances and wastes which pose a serious threat to human health and the 

environment." The law states that it was intended "to clean the worst abandoned hazardous waste 

sites in the country." The legislative history contains a lituny of references to "synthetic:' 

"manmade" chemicals, "chemical contamination," and the results of "modern chemical 

technology" as the problems CERCLA intended to address. It contains no reference to an 

intention (0 clean up manure or urea, or their byproducts, from cattle or any other animal 

agricultural operations. 

Without this clarity, the courts are left to redefine the regulation, Ani111ulmanure has been safely 

Llsed as a fertilizer and soil amendment allover the world for centuries. In recent years,however, 

vice have seen litigation challenge the use of animal manure as a fertilizer by claiming 

contamination and damage to natural resources. 

The issue ofCERCLAIEPCRA's applicability to the livestock industry has been discussed in 

Congress several times in the last decade. I believe congressional intent is clear. When the law 

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was passed. Congress did not intend for manure to be regulated as a hazardous substance. 

Moreover. recent history demonstrates that Congress understands the value of manure to 

producers and has encouraged its creative use. Laws have heen passed and initiatives undertaken 

to encourage rural America to participate in the renewable energy field through the development 

of on-farm energy production. Whether it is producing biogas, electricity or biodiesel derived 

from manure, Congress has acknowledged manure's value by funding research, passing tax 

credits and mandates for its usc. How can we possibly ask dairy producers to invest millions of 

dollars in technologies to support the nation's energy needs without addressing the threat that 

manure might be classified as a hazardous substance. 

Besides being used tor hio-energy production. manure is frequently spread on fields for fertilizer. 

When waterways are near, tanners often use a buffer strip as they are sensitive to keeping water 

sources clean. The buffer strip produces no income or feed, but protects the environment. This 

simple, long standing and environmentally respectful practice is threatened by the insecurity 

surrounding manure's possible regulation under CERCLA/EPCRA. Conversely, I tind it 

interesting that petroleum-based fertilizers. the alternative to this naturally occurring fertilizer arc 

exempt from such laws. 

As a fertilizer. manure is excellent as it contains nitrogen. phosphorus, potassium and other 

nutrients. Manure not only supplies many nutrients for crop production. including 

micronutrients, but it is also a valuable source of organic matter. Increasing soil organic matter 

improves soil structure or tilth, increases the water-holding capacity of coarse-textured sandy 

soils. improves drainage in line-textured clay soils, provides a source of slow release nutrients. 

reduces wind and water erosion, and promotes growth of earthworms and other beneficial soil 

organisms. Additionally, its use reduces an operations dependence on man-made chemical 

fertilizers. which have become very expensive. 

If Congress docs not act. if the courts are allowed to determine the specifics of this law, how will 

this law be applied to dairy and other agriculture producers? Will producers need a special 

permit to dispose of manure'? What about the phosphates used by people on their lawns, golf 

clubs or other community green areas? Would they be classified a Superfund site? On this issue, 

the science and common sense are in agreement. The phosphates in manure are not now, nor 

have they ever been, equivalent to the harmful chemicals that CERCLA has been addressing for 

the last 32 years. 

In 2005. the United States Environmental Protection Agency (EPA) entered into a Consent 

Agreement with animal agriculture to address emissions of air pollutants from animal feeding 

operations that may be subject to requirements of the CAA, the hazardous substance release 

notilication provisions ofCERCLA and the emergency notification provisions of EPCRA. In 

order to secure a substantive sampling, covering different types of operations in different 

geographic regions. the impacted industries paid for their portion of the study themselves. The 

data is currently being analyzed lor tbe purpose of proposing "threshold requirements" for 

reporting air emissions from animal operations of various sizes that could he put into effect next 

year. It is clear that CW A and the CAA already provide suflicient authority to address the needs 

and challenges associated with animal agriculture. EPA is currently moving under the provisions 

of the CAA to deal with air emissions from ammonia, hydrogen sulfide and other substances. 

Using CERCLA lind EPCRA authority to enforce water and air quality standards on animal 

agriculture is another example of "regulatory overkill" at its worst. 

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I will also note that legal action can already be brought against animal operations that are not 

complying with the CWA to require cleanup. At the same time. Total Maximum Daily Load 

requirements have been instituted in watersheds requiring farmers to comply with nutrient 

runoff. 

Lastly, animal agricultural operations are subject to a vast array offcderal, state and local 

cnvironmentallaws and authority to deal with every conceivable environmental problem 

presented by them. They include the CAA. CW A. the Resource Conservation and Recovery Act. 

the Toxic Substances Control Act, f'IFRA. soil conservation. dust and odor mitigation controls, 

as well as nuisance laws, which have been applied broadly throughout the country to provide 

environmental protection t1'om every conceivable aspect of animal agricultural operations. In 

New Mexico. we have the Ground Water Protection Bureau, the Surface Water Bureau. the Air 

Quality Bureau and a set of New Mexico Dairy Rules for permitting of all dairies in addition to 

all the fcderal rules ancl regulations. There has been no indication that environmental laws such 

as these are inadequate. 

The statute is clear in my view. However. that has not been enough to prevent litigation over 

applying the Superfund Laws to munure from animal agriculture. and decisions that they apply. 

I hope Congress addresses this issue and makes clear their original intent that manure from 

31limul agriculture is exempt as a CERCLA hazardous substance. 

I commend Congressman Long for his leadership on this isslle and hope to soon see H.R. 2997. 

the Superfund Common-Sense Act of 20 11. passed and signed into law. 

Thank you for the opportunity to participate in (oelay's hearing. 

4 
106 

Mr. SHIMKUS. Thank you very much. 

And our final witness for today on the fourth panel is Mr. Ed 

Hopkins, Director of Environmental Quality Programs, Sierra Club. 

Sir, welcome. 

STATEMENT OF ED HOPKINS 

Mr. HOPKINS. Thank you, Mr. Chairman, Ranking Member 

Green. I appreciate being here today representing the Sierra Club. 

We have worked at the local, State, and Federal level for over the 

past decade to protect public health and the environment from factory farm pollution. 

Unlike in earlier decades, many of today’s large-scale operations 

contains thousands and in some cases even millions of animals in 

closed buildings producing huge volumes of waste material that can 

pose serious threats to air and water. A recent GAO report cited 

an example of one hog operation generating some 1.6 million tons 

of manure a year. That is about one-and-a-half times the amount 

of sanitary waste produced by the city of Philadelphia. There is an 

important difference is that the city of Philadelphia has a wastewater treatment system; the hog operation doesn’t. 

Some large livestock operations now find themselves producing 

more waste than they can responsibly manage by traditional land 

application practices. But instead of adopting more advanced treatment or moving waste materials outside of watersheds that can’t 

tolerate more pollution, some operations simply dump excess manure. Whether they allow leaks and spills from manure storage lagoons, spray or apply manure to frozen or bear ground, or simply 

over-apply far in excess of the agronomic needs of crops, their practices result in pollution of ground and surface waters with excess 

nutrients and dangerous pathogens, arsenic, other toxic mineral 

compounds, and antibiotics. 

As a result, more than half of the States cite animal feeding operations as sources of water pollution. Some of these operations release more ammonia into the air than industrial facilities. The 

GAO documented many government-sponsored or peer-reviewed 

studies that directly or indirectly linked pollutants from animal 

feeding operations to specific health and community environmental 

impacts. 

That is why cities like Tulsa, Oklahoma, and Waco, Texas, desperate to protect their drinking water from upstream manure pollution resorted to CERCLA as their only source of relief. These cities want to protect their ratepayers from footing the bill to clean 

up somebody else’s pollution. In Waco, for example, the city had to 

spend some $54 million to install new drinking water treatment 

systems. 

Passing H.R. 2997 and exempting poultry and livestock waste 

from CERCLA and EPCRA will only exacerbate these real-world 

problems. It will increase threats to drinking water supplies, force 

water users to bear the cost imposed by sloppy operators, and withhold important information about air toxics from emergency responders in neighboring communities. 

What is the problem that proponents of this bill are trying to 

solve? Are they trying to stop lawsuits threatening farmers? There 

have been three lawsuits to address manure-related contamination 

107 

of water in CERCLA’s 32-year history. Isn’t it completely understandable that communities want polluters held responsible for 

contaminating their drinking water? 

Is it overregulation of agriculture? If anything, poultry and livestock operations are grossly under-regulated. Twenty-nine States 

report that CAFOs are responsible for pollution. Only 40 percent 

of 20,000 large livestock and poultry operations have obtained 

Clean Water Act permits, and as far as I am aware, no livestock 

or poultry operation in the country has a Federal Clean Air Act 

permit. 

Is it duplication between CERCLA and the Clean Water Act? Actually, these laws were carefully crafted to complement one another. If an operation has a Clean Water Act permit, the releases 

covered in that permit are shielded from CERCLA. CERCLA is the 

only Federal law that allows for State and local governments to recover cleanup costs from those responsible for contaminating drinking water supplies. 

Are these laws making manure into a hazardous waste and turning farms into Superfund sites? No one is arguing that manure 

itself is hazardous and no one is seeking to ban its use as a fertilizer. If a farm operator is using manure as a fertilizer, there is 

no liability under CERCLA. There is a specific exclusion for that 

in the law. Only farmers mismanaging manure so as to cause hazardous releases of phosphorous and other pollutants into water 

need be concerned. In the history of CERCLA, not one single farm 

has been named to Superfund’s National Priority List because of 

manure. 

This bill does nothing to help responsible farmers. It is aimed at 

eliminating legal safeguards communities can use to protect their 

drinking water supplies and their ratepayers from irresponsible 

livestock and poultry operators that are dumping their manure and 

causing pollution. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Hopkins follows:] 

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Summary 

STATEMENT OF ED HOPKINS 

SIERRA CLUB 

BEFORE THE 

U.S. HOUSE SUBCOMMITEE ON ENVIRONMENT AND ECONOMY 

OF THE COMMITTEE ON ENERGY AND COMMERCE 

JUNE 27, 2012 

Production of livestock and poultry has concentrated greatly in the last several decades, and this has 

concentrated large amounts of animal waste. While manure is not a hazardous waste, improper handling 

can release phosphorus into water supplies, and its degradation can release large amounts of ammonia and 

hydrogen sulfide into the air. These are hazardous substances under the Comprehensive Environmental 

Response Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right to 

Know Act (EPCRA). Some large livestock and poultry operations release more of these chemicals than 

major industrial facilities. 

Phosphorus can contaminate communities' drinking water supplies, burdening ratepayers and taxpayers 

with cleanup costs. At least 29 states have reported damage to lakes, rivers and streams from large animal 

feeding operations. Air releases of ammonia and hydrogen sulfide - manure degradation products - trigger 

respiratory problems, eye and nose irritation, and in some extreme cases, death. Many university reports, 

peer· reviewed literature and government·sponsored studies have documented the adverse public health 

and environmental effects of animal feeding operations. 

The Sierra Club opposes H.R. 2997, which would create a special exemption for livestock manure from CERCLA 

and EPCRA. If Congress creates this exemption, communities whose waterways or drinking water has been 

damaged by hazardous substances will lose a vital tool for recovering cleanup costs. The cost of cleaning up 

water damaged by excess phosphorus and other hazardous substances in manure would fall on communities and 

ratepayers rather than those responsible for causing the contamination. Communities would remain in the dark 

about toxic chemicals these facilities release into the air. Poultry and livestock operators will also lose a powerful 

incentive to manage their waste responsibly. 
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Mr. Chairman and Members of the Subcommittee, thank you for the opportunity to testify today. My name 

is Ed Hopkins, and I am Director of the Sierra Club's Environmental Quality Program. Sierra Club is a 

grassroots environmental organization with 1.4 million members and supporters. For more than decade, 

we have advocated at the local, state and federal level for more effective protection from public health and 

environmental problems caused by large factory farms. 

We support the provisions of Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) 

and the Emergency Reporting and Community Right to Know Act (EPCRA) that hold polluting industries 

accountable for the damage they cause and require reporting of hazardous releases associated with manure, 

including ammonia and hydrogen sulfide. Without these statutes, the government is powerless to protect critical 

natural resources like public drinking water supplies, and the public is unwittingly exposed to potentially 

dangerous quantities of hazardous pollutants. 

We oppose legislation, such as H,R. 2997, that would create special exemptions from environmental laws for the 

vast quantities of manure and other waste created by factory farms. If Congress creates this exemption, 

communities whose drinking water has been damaged by hazardous substances will lose a vital tool for 

recovering cleanup costs. Poultry and livestock operators will also lose a powerful incentive to manage their 

waste responsibly, The cost of cleaning up water damaged by excess phosphorus and other hazardous 

substances in manure would fall on communities and ratepayers rather than those responsible for causing the 

contamination. 

Modern Livestock Operations Concentrate Large Amounts of Animal Waste 

Most animal feeding operations do not resemble the livestock farms of years past. Instead, many are 

industrialized operations that confine thousands of animals at a single location, often generating the waste 

equivalent of a small cityl Unlike traditional livestock farms where the animals grazed on pastureland, these 
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facilities confine thousands, or even millions, of the animals in closed buildings for most of their lives, where 

they are fed a regimented diet in a closely controlled indoor environment.' 

A General Accountability Office study estimated that between1982 and 2002, the number of large farms that 

raise animals increased by 234 percent and that almost half of all animals were raised on large farms.' These 

large operations produce about 300 million tons of manure annually or three times more waste than humans 

generate each year in the United States.' Depending on the type and number of animals, the GAO estimated 

that individual farms can produce from over 2,800 tons to more than 1.6 million tons of manure each year. 

The GAO estimated that one large hog farm could generate 1.6 million tons of manure a year, which is one 

and one-halftimes the amount of sanitary waste generated by the 1.5 million residents of Philadelphia in a 

year. 5 An important difference: the City of Philadelphia treats its wastewater, the large hog operation does 

not. 

Livestock Waste Threatens Public Health and the Environment 

With so much manure concentrated in small areas come threats to public health, water and air. According to 

the most recent National Water Quality Inventory, 29 states specifically identified animal feeding operations 

as contributing to water quality impairments." Waste pits full of manure fail, inundating rivers and killing 

fish. In 1995, approximately 25 million gallons of manure were discharged from a single hog operation in 

North Carolina.' Similarly, discharges of thousands of gallons of animal waste have been reported in Iowa, 

Illinois, Minnesota, Missouri, Ohio and New York.s 

Waste applied to fields in large quantities can run off into lakes and rivers. The nutrient-rich runoff alters the 

chemical composition of receiving waters, and triggers a surge in algae and other aquatic vegetative growth. 

This vegetative growth can choke out fish and other marine life, and lead to increased treatment 

requirements for drinking water supplies. According to the EPA, "over-enrichment of waters by nutrients 

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(nitrogen and phosphorus) is the biggest overall source of impairment of the nation's rivers and streams, 

lakes and reservoirs, and estuaries."g 

When large farms are clustered in a region for easy access to processing facilities, the GAO reported that: 

"According to agricultural experts and government officials that we spoke to, such clustering of operations 

raises concerns that the amount of manure produced could result in the overapplication of manure to 

croplands in these areas and the release of excessive levels of some pollutants that could potentially damage 

water quality."lD According to a U.s. Department of Agriculture report, the numbers of counties with excess 

manure nitrogen increased by 103 percent, from 36 counties in 1982 to 73 counties in 1997. Similarly, the 

number of counties with excess manure phosphorus increased by 57 percent, from 102 counties in 1982 to 

160 counties in 199711 

This contamination poses serious risks to human health. Manure-related microbes in water can cause severe 

gastrointestinal disease, complications and even death U In May 2000 in Walkerton, Ontario, an estimated 

2,321 people became ill and seven died after drinking water from a municipal well contaminated with E.coU 

and Camplyobacter from runoff resulting from manure spread onto fields by a nearby livestock operation. 

Manure can also carry arsenic and other toxic metal compounds, as well as antibiotics, into water 

contributing to antibiotic resistance l4 Finally, pollution from animal confinements can cause nitrate 

contamination of drinking water supplies, which can result in significant human health problems including 

methemoglobinemia in infants ("blue baby syndrome"), spontaneous abortions and increased incidence of 

stomach and esophageal cancers." 

Air emissions also cause significant health problems in workers and in nearby residents. livestock and 

poultry operations emit significant amounts of particulate matter (fecal matter, feed materials, skin cells, 

bioaerosols, etc.), ammonia, hydrogen sulfide, sulfur dioxide, volatile organic compounds, and other harmful 

contaminants into the air. Many adverse human health effects associated with air pollution from these 

operations, including respiratory diseases (asthma, hypersensitivity pneumonitis, industrial bronchitis), 

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cardiovascular events (sudden death associated with pilrticulate air pollution), and neuropsychiatric 

conditions (due to odor as well as delayed effects of toxic inhalations,), 17 Other problems include increased 

hCiJdaches, sore throats, excessive coughing, diarrhea, burning eyes, and reduced quality of life for nearby 

residents," This air pollution is especially problematic, because neighboring communities are exposed on a 

near constant basis,l9 

Ammonia is a human toxin that EPA lists alongside arsenic, cyanide, and benzene as a hazardous substance 

under CERCLA, 40, CF,R, § 302.4. The livestock sector produces roughly 73% of all ammonia emissions 

nationwide20 Human exposure to ammonia triggers respiratory problems, causes nasal and eye irritation, 

and in extreme circumstances, is fataL" Ammonia also contributes to the development of fine particulate 

matter, Fine particulate matter causes significant health problems, including aggravated asthma, difficult or 

painful breathing, chronic bronchitis, decreased lung function, and premature death, Fine particulate 

matter has been linked to increased hospital emissions and emergency room visits for people with heart and 

lung disease, and decreased work and school attendance." 

Animal feeding operations expose downwind neighbors to elevated ammonia levels, as well as other 

pollutants, For example, the Missouri Department of Health and Senior Services documented ambient 

ammonia levels downwind of a swine operation ranging from 153 to 875 ppb, The EPA submitted comments 

on the Missouri study, comparing the ambient ammonia levels to recommended exposure limits and noted 

that "the conclusion could be drawn that a public health hazard did exist at the time the".data was 

acquired,"" Some of the largest facilities produce staggering quantities of ammonia gas-comparable to 

pollution from the nation's largest manufacturing plants, For example, Threemile Canyon Farms in 

Boardman, Oregon, reported that its 52,300 dairy cow operation emits 15,500 pounds of ammonia per day, 

more than 5,675,000 pounds per year. That is 75,000 pounds more than the nation's number one 

manufacturing source of ammonia air pollution (CF Industries of Donaldson, Louisiana) reported releasing 

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that year." Buckeye Egg Farm's facility in Croton, Ohio reported ammonia emissions of over 4,300 pounds 

per day - 43 times the reporting threshold under CERCLA and EPCRA. 

In addition to ammonia, EPA also lists hydrogen sulfide as a hazardous pollutant under CERCLA. High-level 

exposures of hydrogen sulfide, an asphyxiate, can cause loss of consciousness, coma and death. At least 19 

workers have died from sudden hydrogen sulfide exposure during liquid manure agitation. i9 Epidemiological 

studies of communities exposed to hydrogen sulfide reported symptoms such as asthma, chronic bronchitis, 

shortness of breath, eye irritation, nausea, headaches and loss of sleep. 30 

The GAO study found that that "Since 2002, at least 68 government-sponsored or peer-reviewed studies 

have been completed on air and water pollutants from animal feeding operations. Of these 68 studies, 15 

have directly linked pollutants from animal waste generated by these operations to specific health or 

environmental impacts, 7 have found no impacts, and 12 have made indirect linkages between these 

pollutants and health and environmental impacts. In addition, 34 of the studies have focused on measuring 

the amount of certain pollutants emitted by animal feeding operations that are known to cause human 

health or environmental impacts at certain concentrations.,,3l 

These risks to public health led the American Public Health Association to call for a moratorium on new 

concentrated animal feeding operations "until scientific data on the attendant risks to public health have 

been collected and uncertainties resolved."" 

EPCRA and CERCLA Requirements 

CERCLA has two main policy objectives. First, Congress intended to give the federal government the 

necessary tools for a prompt and effective response to problems of national magnitude resulting from 

hazardous waste disposal. Second, Congress intended that the polluters bear the costs and responsibility 

for remedying the harmful conditions that they created." 

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Specifically, section 103 of CERCLA provides that any person in charge of a facility from which a hazardous 

substance has been released in a reportable quantity ([{O) must immediately notify the National Response 

Center ("NRC)." For example, releases of ammonia and hydrogen sulfide that exceed 100 pounds per day 

must be reported under section 103.42 Section 103(f)(2) of CERCLA further provides for relaxed reporting 

requirements for substances that are classified as a continuous release. 36 If a reported release demands a 

response, the government may act, pursuant to section 104, to respond to that release." And if the 

government acts, it may recoup the costs of the recovery action under CERCLA section 107.38 

In addition to the reporting requirements under CERCLA, owners and operators of facilities must also provide 

immediate notice of the release of an extremely hazardous substance under EPCRA. Section 304(a) requires 

an owner or operator of a facility to report the release of an extremely hazardous substance to deSignated 

state and local officials, if "such release requires notification of section 103(a) of the Comprehensive 

Environmental Response, Compensation, and Liability Act of 1980.,,39 The EPCRA emergency reporting 

requirements, therefore, track the CERCLA requirements and ensure that federal, state and local authorities 

are notified of potentially dangerous chemical releases. 

The right-to know provisions of CERCLA and EPCRA not only empower government but also citizens. 

Information about chemical releases enables citizens to hold companies and local governments accountable 

in terms of how toxic chemicals are managed. Transparency also often spurs companies to focus on their 

chemical management practices since they are being measured and made public. In addition, the data serve 

as a rough indicator of environmental progress over time. 

CERCLA/EPCRA Fill Important Gaps in Permitting Statutes 

CERCLA and EPCRA require the reporting of only non-federally permitted releases. Therefore, if a facility's 

emissions are autho,rized by a permit under another federal statute, they do not have to report these 

emissions. Releases that are federally permitted are exempt not only from CERCLA and EPCRA notification 
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requirements but from CERCLA liability as well.'o Although EPA and the States have permitted some feeding 

operations under other federal statutes, CERCLA is still necessary to fill critical gaps, Although the Clean 

Water Act has required large livestock operations to obtain permits for almost 40 years, noncompliance has 

been widespread, As EPA indicates in a proposed information collection rule, only about 8,000 concentrated 

animal feeding operations out of a universe of about 20,000 facilities - about 40 percent - have obtained 

Clean Water Act NPDES permits," 

Even if a facility were to have a federal permit, the permit would not necessarily address all of the releases of 

hazardous chemicals, A Clean Water Act permit, for example, would not address releases of hazardous 

chemicals to the air and, conversely, a Clean Air Act permit would not address releases of hazardous 

chemicals to water. Furthermore, not all statutes regulate the same chemicals, For example, the Clean Air Act 

does not regulate ammonia or hydrogen sulfide as hazardous air pollutants, Although CERCLA's list of 

hazardous substances were first identified under other statutes, including the Clean Water Act, the Clean Air 

Act and the Resource Conservation and Recovery Act, CERCLA authorizes the Administrator of EPA to add to 

this list "substances [like ammonia and hydrogen sulfide] which, when released to the environment may 

present a substantial danger to public health or welfare or the environmenL"" 

Thus, EPCRA and CERCLA are necessary complements to federal permitting statutes to address hazardous 

pollutants that would not otherwise be regulated, They do not duplicate other federal laws, 

Animal Production Operations Should Not Be Exempted from EPCRA/CERCLA 

The poultry and livestock industry argues that Congress never intended to apply CERCLA and EPCRA 

requirements to animal agriculture, However, they cite to no authority for this claim, If Congress had 

intended such a result, it could have excluded animal production facilities, like hog or poultry facilities, from 

the reporting requirements of CERCLA,43 Instead, Congress only chose to exempt "the normal application of 

fertilizer" from the CERCLA definition of release," and provided an exemption under EPCRA for reporting 

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releases when the regulated substance "is used in routine agricultural operations or is a fertilizer held for sale 

by a retailer to the ultimate consumer,"" 

Both of these exemptions were considered by a federal district court in Kentucky which held that neither of 

the exemptions should apply to Tyson's poultry production operations, Tyson did not qualify for the routine 

agricultural use exemption, because it did not store arnmonia in the chicken houses for agricultural use, nor 

did it use the ammonia in an agricultural operation," Rather, it used exhaust fans and vents to release the 

ammonia to the environment so that it would not kill the chickens, Tyson did not qualify for the normal 

application of fertilizer exemption, because they were not applying ammonia to farm fields as fertilizer when 

they vented it into the atmosphere" 

A federal court in Texas also considered the norrnal application of fertilizer exemption, The court ruled that 

the exemption does not apply if Plaintiffs prove that the Defendants improperly stored and maintained large 

amounts of waste on their property, causing hazardous releases of phosphorus and other pollutants to 

nearby sources of drinking water," Industry representatives also argue that the CERCLA exclusion for 

"naturally occurring substances" should apply to livestock operations, Section 104(a)(3)(A) of CERCLA 

prohibits the President [through EPA] from ordering a remedial or response action "in response to a release 

or threat of release .. ,of a naturally occurring substance in its unaltered form, or altered solely through 

naturally occurring processes or phenomena, from a location where it is naturally found .. ," Industry argues 

that CERCLA should not apply to farming operations because "[s]ubstances, such as orthophosphate, 

ammonia and hydrogen sulfide, occur naturally in the environment in the same forms as they occur as 

byproducts of biological processes on farming operations," However, releases of hazardous substances from 

agribusinesses would not qualify for the exemption, because they occur as a result of activities associated 

witn milk or meat production,49 For example, as discussed below, in both of the response actions taken to 

date, the governments' actions were not based on releases of naturally occurring phosphorus or 

orthophosphate undisturbed by human activity, Rather, the governments sought to remove hazardous 

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substances that were added to the environment and disposed of by the operations during the improper 

storage and handling of waste. 

CERCLA/EPCRA Cases against Agribusinesses, Nat Family Farms 

There have only been a handful of cases filed against poultry and livestock operations for violations of 

CERCLA and EPCRA. In most of the cases, the defendants have been large corporate agribusinesses, not 

family farmers, and the releases of hazardous chemicals have been significant. Courts have consistently held 

that CERCLA and EPCRA reporting requirements apply to agricultural operations if releases of regulated 

hazardous substances meet regulatory thresholds. 

Premium Standard Farms -In November 2001, the United States and Citizens Legal Environmental Action 

Network, Inc. settled a case against Premium Standard Farms, Inc. (PSF), the nation's second largest pork 

producer and Continental Grain Company. PSF's and Continental's operations in Missouri consist of more 

than 1,000 hog barns, 163 animal waste lagoons and 1.25 million hogs, primarily located on 21 large-scale 

farms in five counties. The settlement resolved numerous claims of violations under the CWA,sO CAA,51 

CERCLA and EPCRA. 52 

PSF exposed downwind neighbors to elevated ammonia levels, as well as other pollutants." Measurements 

taken pursuant to the settlement agreement reveal that PSF releases 3 million pounds of ammonia annually 

from the cluster of barns and lagoons at its Somerset facility. At the time, these emissions made PSF the 

fifth largest industrial emitter of ammonia in the United States. This data does not include the ammonia 

gases released when liquid manure is sprayed on the company's nearby fields. 

Seaboard Corporation- On January 7, 2003, the Sierra Club reached partial settlement of a lawsuit against 

the Seaboard Corporation, concerning pollution at one of the largest hog factories in North America. The 

settlement resolved all claims, except for Sierra Club's CERCLA and EPCRA claims. CERCLA requires a person 

10 
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to report releases of a hazardous substance from a "facility." In an effort to avoid regulation, Seaboard 

argued that each pit and building should be counted separately. An appellate court found Seaboard's 

arguments "unconvincing." The Court held that the entire 25,000-head hog operation was a single "facility" 

and that Seaboard must report the combined emissions from all its waste pits and confinement buildings. 55 

Seaboard estimates that the total average daily emissions of ammonia are from its Dorman Sow Facility is 

192 pounds per day, almost double the 100 pound per day reporting threshold under CERCLA. 

Tyson Foods, Inc. - On January 26, 2005, the Sierra Club entered into a settlement agreement with Tyson 

Foods. Tyson is the number one poultry producer in the nation, and each of its four facilities that were 

involved in the case could confine approximately 600,000 chickens at one time. Under the decree, Tyson 

agreed to study and report on emissions from its chicken operations and mitigate ammonia emissions that 

have been plaguing rural residents for years. The settlement came in the wake of a court decision in 2003, 

when a federal judge ruled that the term "facility" should be interpreted broadly, including facilities operated 

together for a single purpose at one site, and that the whole farm site is the proper regulated entity for 

purposes of the CERCLA and EPCRA reporting requirements. 56 

City of Tulsa - The City of Tulsa filed suit against some of the largest poultry producers in the nation including 

Tyson, Simmons and CargilL57 The City alleged that the Defendants' growers polluted Lakes Eucha and 

Spavinaw, from which Tulsa draws its water supply, by applying excess litter to land application areas. As of 

September 1, 2002, just one of the Defendant's growers produced approximately 40,715,200 birds and an 

estimated 39,859 tons of litter in the affected watershed. 58 The City's complaint included claims faT cost 

recovery and contribution under CERCLA. A federal court ruled that phosphorus contained in the poultry 

litter in the form of phosphate is a hazardous substance under CERCLA.;g 

The City of Tulsa continues to experience water quality problems as a result of pollution from animal feeding 

operations. The following comment, submitted in response to the EPA's proposed information collection 

request for large animal feeding operations, supports the need for more regulation of these operations, not 

11 
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81483.066

less: "The City of Tulsa used a significant amount of financial resources in an attempt to coordinate with the 

poultry industry on ways to promote environmental stewardship, improve nutrient management practices 

and stakeholder communication, but with no success, Success only came from subsequent court order 

directives.,,60 

City of Waco -In 2004, the City of Waco filed suit against fourteen commercial dairies for failure to properly 

manage and dispose of waste, The complaint alleges that hazardous pollution from these dairies 

contaminated Lake Waco, which is the sale source of drinking water for the City of Waco and a significant 

source of drinking water for surrounding communities," The City's complaint includes claims for cost 

recovery and contribution costs under CERCLA, The Court denied the dairies' Motion to Dismiss and held, 

among other things, that the type of phosphorus that was released by the dairies was a hazardous substance 

under CERCLA" The Court also held that the normal application of fertilizer exemption would not apply if 

Plaintiffs could prove that the releases of hazardous substances were caused by the dairies' improper 

handling of animal waste," The City subsequently settled its case, To address taste and odor problems 

caused by excessive phosphorus in its water supply, the City is spending more than $54 million in upgrades to 

its drinking water treatment system," The City also opposed legislation similar to H,R, 2977 in a previous 

session of Congress, 

State of Oklahoma - On June 18, 2005, the Oklahoma Attorney General's Office filed a lawsuit against some 

of the nation's largest producers of chickens, turkeys and eggs for water pollution in the Illinois River 

watershed caused by the improper dumping and storage of poultry waste,55 The watershen contains elevated 

levels of a number of pollutants found in poultry waste, For example, the phosphorus from the poultry waste 

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

people, a population greater than the states of Arkansas, Kansas and Oklahoma combined," The watershed 

also serves as the source of drinking water for 22 public water supplies in eastern Oklahoma·7 The Attorney 

General's complaint alleges violations of state and federal nuisance laws, trespass, as well as other violations 

12 
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81483.067

of state environmental regulations. The State also seeks to recover the costs that it has had to incur, and will 

incur, to respond to the pollution. These costs include "the costs of monitoring, assessing and evaluating 

water quality, wildlife and biota in the [Illinois River Watershed]."" The State also seeks to recover Natural 

Resource Damages for the injury to, destruction of, and 1055 of natural resources. 69 This case remains 

unresolved. 

Citizens Cannat Recaver Natural Resources Damages or Penalties Under the Response Sections of CERCLA 

Industry representatives have incorrectly asserted that citizen suits threaten to impose natural resource 

damage liability under CERCLA. 70 In fact, natural resource damages may only be recovered by a designated 

federal, state or tribal trustee71 Industry has also raised alarms about high penalties from citizen suits and 

cases brought by municipal and state governments. Again, there is no rational basis for this assertion. Tyson 

and Seaboard did not pay a single penny in their cases brought by Sierra Club for failure to report their 

hazardous air emissions under CERCLA and EPCRA. Furthermore, penalties are unavailable under CERCLA for 

removal or remedial actions, regardless of whether they are initiated by government or by a private party." 

Finally, citizens are even limited in their cost recovery actions. A private party must prove as part of its prima 

facie case that the cleanup activities for which it incurred response costs were consistent with the National 

Contingency Plan. 

Exempting Agribusinesses from EPCRAjCERLA Requirements Would Prevent EPA from Gathering Critical 

Data 

By exempting reporting requirements for poultry and livestock waste emissions, the EPA would be prevented 

from even knowing the scope or consequences of this pollution. Ignoring this problem will not make it go 

away; virtually every study that has been done on this subject emphasizes the need for more information. 

13 
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81483.068

The National Academy of Sciences (NAS) issued a report in 2003 in which it expressed concern over air 

pollution from animal feeding operations and criticized EPA and USDA for not devoting the necessary 

technical or financial resources to estimate air emissions and to develop mitigation technologies." The 2008 

GAO report underscored the need for more information: "Although EPA is aware of the potential impacts of 

air and water pollutants from animal feeding operations, it lacks data on the number of animal feeding 

operations and the amount of discharges actually occurring. Without such data, according to EPA officials, 

the agency is unable to assess the extent to which these pollutants are harming human health and the 

environment." ·,'S 

Failing to require reporting may impede responses to acute health threats. Emissions of hydrogen sulfide from 

the Excel Dairy in Marshall County, Minnesota, illustrate the importance of retaining the reporting requirements 

so that health officials can respond to emergencies. According to a September, 2008, Exposure Investigation by 

the Agency for Toxic Substances and Disease Registry, high and persistent emissions of hydrogen sulfide from the 

dairy prompted a finding of a "public health hazard associated with community exposures." With concentrations 

of hydrogen sulfide exceeding the measuring capability of the Minnesota Pollution Control Agency's monitoring 

equipment, ATSDR recommended immediate action to reduce emissions from the dairy, more sophisticated air 

monitoring, and restricted access to the dairy property to reduce exposures?6 

In conclusion, because of the demonstrable public health and environmental threats that animal feeding 

operations pose, CERCLA and EPCRA provide critical safeguards complementing other statutes. Sierra Club 

strongly opposes legislation like H.R. 2997 that would create special exemptions for hazardous substances 

released from poultry and livestock operations. This bill serves only to shift cleanup costs to taxpayers and 

ratepayers and keep regulatory agencies and the public in the dark about exposures to chemicals that these 

facilities release. Thank you for considering our views. 

14 
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81483.069

1 EPA, Environmentai Assessment of Proposed Revisions to the National Pollutant Discharge Ellmination System Regulation and 

the Effluent Guidelines for Concentrated Anima! Feeding Operations, EPA-821-8-01-001 at 2-2 {200l} {"Environmenta! 

Assessment"). 

2: EPA, Development Document for the Final Revisions to the National Pollutant Discharge Elimination System Regulation and 

the Effluent Guidelines for Concentrated Animal Feeding Operations, EPA-821-R-03~001 at 4-3 (2002) ("Development 

Document"). 

::1 GAO, Concentrated Animaf Feeding Operations: EPA Needs More !nformation and 0 Clearly Defined Strategy to Protect Air and 

Water Quality from Pollutants of Concern. September, 2008. Pp. 4-5. [hereinafter GAO] 

4 EPA, National Pollutant Discharge Elimination System Permit Regulation and Effluent limitation Guidelines and Standards for 

Cor>eerltratedAnimal Feeding Operations ICAFOs), 68 Fed. Reg. 7176, 7180 12003) [hereinafter USEPA, CAFO Final Rule]. 

GAO at S. 

6 U.S, EPA; National Water Quality Inventorv' Report to Congress: - 2004 Reporting Cycle, January, 2009. 

7 Environmental Assessment at 2-17. 

8 !d. at 2~18; see also The New York Times, How to Poison a River, (Aug. 19, 2005) {commenting on a 3 miHion gallon spill from a 

dairy in New York 

USEPA and USDA, Clean Water Action Plan: Restoring and Protecting Amerka's Waters at 56 (Feb. 1998). 

10 1d . 

11 R. l. Kellogg, C.H. Lander, D. C. Moffitt, and N. Gollehon, Manure Nutrients Relative to the Capacity of Cropland and 

Pasture/and to Assimilate Nutrients: Spatloi and Temporal Trends for the United States. (Washlngton, D.C.: December 2000). 

David Wallinga, M.D., Institute for Agricu!ture and Trade Polley, Concentrated Anima! Feedjng Operations: Health Risksjrom 

Water Pollution (Aug, 2004). 

Id. 

14 Id,; see e.g., Chapin et ai., Airborne Multidrug-Resistant Bacteria Isolated from a Concentrated Swine Feeding Operation, 113 

Environmental Health Perspectives 137 (2005). 

15 EPA, CAFO Final Rule, at 7238. See also, US. Environmenta! Protection Agency, Office of Children's Health Protection, 

Drinking Water Contamlnants-America's Children and the Environment: A First View of Available Measures, 

http:j !yo;:;emite.epa.gov!ochp!ochpweb.nsf/content/drinktng-water-contam,htm; Centers for Disease Control and Prevention, 

Spontaneous Abortions Possibly Related to Ingestion of Nitrate-Contaminated Wefl Water-La Grange County, Indiana .1991-

1994-, Morbidity and Mortality Weekly, Report 45 (26) (1996), at 569-571 (linking high nitrate levels in Indiana well water near 

confinement operations to spontaneous abortions in humans).http://www.cdc.gov/mmwr/preview!mrnwrhtm!/0042839.htm 

Hi Iowa State University and The University of Iowa Study Group, Iowa Concentrated Animal Feeding Operations, Air Quality 

Study, Fmal Report (2002) ("Iowa Air Quality Study")' http://www.pubtic~hea!th.ulowa.edll/ehsrc/CAFOsludy.htm 

l1 Iowa Air Qual1ty Study at 122; see also Minnesota Planning Agency Environmenta! Quality Board, Final Anima! Agriculture 

Generic Environmental Impact Statement {2002}, ("Minnesota E!S for Animal Agriculture"), http://www.eqb.statexnn.us!gels/ 

for information concerning health impacts of particular AFO air pollutants. 

18 S. Wing & S. Wolf, Intensive LIvestock Operations, Health, and Quality of Ufe Among Eastern North Carolina Residents, 108 

Envtl. Health Persp. 223-3812000); see also K. Thu et al.,A Control Study of the Physical and Mental Health of ReSidents Living 

Large-Scale Swine Operation, 3 J. Agric Safety & Hea!th 1, 13-26 (1997). 

Iowa Air Quality Study at 122. 

20 EPA, Ammonia Emission Factors from Swine Finishing Operations, 

Schiffman, 5.S., et aL, Health Effects of Aerial Emissions from Anima! Production and Waste 

Management Systems, httpJ/www.ca!s.ncsu.edu/waste_mgt/nat!center/summary.pdf 

v EPA, Health and Environmental Impact oj PM, http://www.epa.gov/air/urbanair/pm/hlthLhtmL 

271 EPA, Chief Causes for Concern, http://www.epa.gov/aJr/urbanalr/pm/chf.htm!. 

24 Memo from Mario Jorquera to Scott Clardy (December 2,2002). 

EPA, National Emission Inventory -' Ammonia Emissions from Animaf Husbandry Operations,Draft Report, 

letter from Tom lindley on behalf of Three mile Canyon Farms to EPA Region X, April 18, 2005. 

U.s. EPA, Toxies Release Inventory, 2003, Search performed at: <http://www.epa,gov/triexplorer/>, 

28 U.S. Department of Justice, Ohio's Largest Egg Producer Agrees to Dramatic Air Poflution Reductions from Three Giant 

Focilities.http://www.usdoj/opa/pr/2004/February/04_enrd_105.htm. 

15 
123 


81483.070

29 EPA, Health and Environmental Impact of PM, http://www.epa.gov/air/urbanalr/pm/hlthl.htmL 

30 United States Public Health Service (1964). 

GAO at 23. 

32: American Public Health Association, Precautionary Moratorium on New Concentrated Animal Feed Operations, 2003-7, 

http://www . a phil .urg/legl slatlve/pollcy 12003/2003-007. pdf. 

U.S. v. Reilly Tar & Chemical Corp., 546 f. Supp. 1100, 1112 (D. Minn. 1982); see also Walls v. Waste Resource Corp., 823 F. 

2d 977, 980 (6th Clr. 1987); Dedham Water Co. v. Cumberland farms Dairy, Inc. 80S F.2d 1074, 1081 (1st Clr. 1986). 

34 !d. 

42 U.S.c. § 9603(a). 

36 42 U.s.c. § 9603(1). 

37 42 U.S.c. § 9604(a). 

38 42 U.S.c. § 9607(a)(4)(A). 

39 42 U.S.c. § 11004(a); 40 (.f.R. § 355.40(b)(1). 

USEPA, Office of Solid Waste and Emergency Response, Questions and Answers on Release Notification Requirements and 

Quantity Adjustments, EPA/540/R-94/005 (Jan.1995). 

National Pollutant Discharge Elimination System (NPDES) Concentrated Anima! Feeding Operation (CAFO) Reporting Rule, 76 

Reg. 65445 (Oct. 21, 2011). 

42 USc. § 9602 (a). 

43 Sierra Club v. Tyson foods, et ai, 299 f. Supp. 2d 693, 706 (W.D.Ky. 2003). 

42 U.s.c. § 9601(22)(D). 

45 42 U.S.c. § 11021(e)(S). 

46 Sierra Club v. Tyson Foods, et ai, 299 f. Supo. 2d 693, 714 (W.D.Ky. 2003). 

47 1d. 

City of Waco v. Dennis Schouten, et. aI., No. W-04-CA-118, slip op. at 9 (W.O. Tx. 2005). 

49 53 See, e.g., U.S, v. Iron Mountain Mines, et.al., 987 F. Supp. 1244 (E.D. Cal. 1997). (exemption held not apply to releases of 

metals altered by mining); U.S. v W.R. Grace and Co.-Conn., 280 F.Supp. 2d 1149 (D. Mont. 2003) (exemption held not to apply 

to releases of asbestos and asbestos-contaminated vermiculite that was a by-product of vermiculite processing}. 

50 Department of Justice, News Release, Nation's Second Largest Hog Producer Reaches Settlement with U.S. and Citizen's 

Group (Nov. 20, 2001). 

Slid., see also EPA Notice of Violation issued to Premium Standard Farms (April 2000); EPA, Clarification of Notice oiVio/ation 

Memo from Mario Jorquera to Scott Clardy {December 2, 2002}, 

54 Premium Standard Farms, Air Emissions Monitoring Completion Report (Nov, 17,2004). 

SS Sierra Club v. Seaboard Farms, 387 F, 3d 167 (10th Or. 2004), 

56 Sierra Club v. Tyson Foods, et ai, 299 f. Supp. 2d 693 (W.D.Ky, 2003). 

c" City of Tulsa v. Tyson Food Inc., et. al" 258 F. Supp. 2d 1263 (N.D. Okla. 2003). 

58 Id. at1272. 

59 !d. at 1285. Although the Court's ruling was vacated as part of a settlement agreement, the Court's reasoning may still be 

City of Tulsa, Comment on EPA's proposed NPDES CAFO Reporting Rule Docket!D No. EPA-HG-OW-2-11-0188. Oct. 24, 2011. 

61 City of Waco v. Dennis Schouten et. aL, Civil Action No. W-04-CA-118 (W.O. Texas), First Amended Complaint (May 27, 2004). 

62: City of Waco v. Dennis Schouten et. aL, Civil Action No, W-04-CA-118 (W.O. Texast Memorandum Opinion and Order at 8 

29,2005). 

Id. at 9. 

64 letter from Larry Groth, Waco City Manager to Senators !nhofe and Jeffords, June 2, 2006. 

50 State of Oklahoma v. Tysons Foods, Inc. et.al., Civil Action No. OSCV0329 JOE-SAJ (N.D. 

Okla.), Complaint (June 18, 2005). 

66 Oklahoma Attorney General's Office, News Re!ease, AG Sues Poultry Industry for Poltuting Oklahoma Waters (June 13, 2005). 

Id. 

Complaint at ~ 76. 

16 
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81483.071

69 Complaint at ~ 89 

70 Southern Association of State Departments of Agriculture, Clarifying CERCLA and EPCRA Do Not Apply to Animal Agriculture. 

J1 42 U.$,C § 9607 (f)(1). 

n See 42 USC § 9607, 

13 42 USc. § 9607 (a)(4)(8), 

National Academy of Sciences, Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs (2003). 

75 GAO at 23, 

75 letter to Cheryl Newton (EPA) and Gay!en Reetz (MN Pollution Control Agency) from Department of Health and Human 

Services and Minnesota Department of Public Health, September 19, 2008. 

17 
125 

Mr. SHIMKUS. Thank you, Mr. Hopkins. Let me go first to you. 

Does the Clean Water Act Section 311(f) authorize recovery of 

costs incurred pursuant to hazardous substance mitigation requirements under Section 311(c) of the Clean Water Act? 

Mr. HOPKINS. Not to my knowledge, sir. 

Mr. SHIMKUS. I think it does. And the question would be does 

2997 change those authorities? 

Mr. HOPKINS. The bill doesn’t amend the Clean Water Act. 

Mr. SHIMKUS. So if I am correct and the Clean Water does allow 

recovery, then this bill would not affect the recovery of those costs. 

I mean if we were just following the basic—well, obviously, we will 

have to get you to look at whether the Clean Water Act authorizes 

the recovery of cost, which you don’t know the answer to. We think 

it does. 

Mr. HOPKINS. My understanding, sir, is that the reason that the 

city of Waco and that Tulsa sued using CERCLA was because that 

was the statute that best provided them the—— 

Mr. SHIMKUS. Yes. Reclaiming my time—— 

Mr. HOPKINS [continuing]. Possibility of getting—— 

Mr. SHIMKUS. They also sued under the Clean Water Act, and 

that was settled out of court. So it was a settlement between the 

two parties so it never went to full litigation. 

Let me ask the same question on the Solid Waste Disposal Act, 

which authorizes EPA to obtain information or inspect facilities 

where hazardous wastes have been generated, stored, disposed of, 

or transported. Would H.R. 2997 change any of these authorities? 

Mr. HOPKINS. Well, manure is not a hazardous waste, so it 

wouldn’t be covered by—— 

Mr. SHIMKUS. But this is under the Solid Waste Disposal Act. 

Mr. HOPKINS. Yes, and that is regulating hazardous waste. That 

is what the Solid Waste Disposal Act is. And—— 

Mr. SHIMKUS. But if the hazardous waste is a solid waste—— 

Mr. HOPKINS. Um-hum. 

Mr. SHIMKUS [continuing]. Then Section 3007 of the Solid Waste 

Disposal Act authorizes the EPA to obtain information and inspect 

facilities. So the question is, in the proposed bill, would that change 

that authority? 

Mr. HOPKINS. No, the proposed bill would not change any authority—— 

Mr. SHIMKUS. Thank you. 

Mr. HOPKINS [continuing]. Under that law. 

Mr. SHIMKUS. And then Section 7002 of the Solid Waste Disposal 

Act authorizes citizen suits against any person of the Federal Government to enforce the solid and hazardous waste laws. Would 

H.R. 2997 change these authorities? 

Mr. HOPKINS. No, it doesn’t. 

Mr. SHIMKUS. Again, Section 7003 of the Solid Waste Disposal 

Act gives EPA authority to address imminent hazards and issues 

orders necessary to protect the environment. In fact EPA has used 

this authority before in pursuing a livestock operation. Would H.R. 

2997 change these authorities? 

Mr. HOPKINS. No, sir. 

126 

Mr. SHIMKUS. Section 112 of the Clean Air Act requires air emissions reporting on hazardous air pollutants. Does H.R. 2997 change 

these authorities? 

Mr. HOPKINS. No, it doesn’t amend the Clean Air Act. 

Mr. SHIMKUS. Thank you. Let me ask, you know, Mr. Stanislaus 

who testified for the EPA, kind of seemed all over the board. In one 

comment, the comment was, ‘‘manure is not hazardous waste,’’ but 

then he went down and then flipped and said, well, the component 

parts of the manure are hazardous. And I found his testimony 

quite confusing to the point that I just decided to let him finish and 

move forward. 

Let me go back to Mr. Hopkins. Are you all a party of the suit 

to the EPA which caused the reevaluation and their filing under 

the Federal Register of October 21, 2011? Mr. Stanislaus talked 

about suits filed. Was Sierra Club part of filing a suit in this case 

that helped encourage the EPA to relook at their position? 

Mr. HOPKINS. You know, Mr. Chairman, I am sorry I don’t know 

the answer to that but I would be happy to provide that for the 

record. 

Mr. SHIMKUS. That would be helpful. 

So finally, Ms. Hildebrand and Mr. Bradley, you did hear the 

EPA, Mr. Stanislaus and his testimony. I will give you each 20, 25 

seconds to anything you heard that you think that we might want 

to raise our concerns. 

Ms. HILDEBRAND. Well, I am not sure if Mr. Stanislaus is not as 

familiar with the Clean Air Act or the Clean Water Act and that 

is why he answered as he did, but it seemed that he thought that 

there was nothing that the Federal Government could do to compel 

immediate action if there were a lagoon overflow or something to 

that effect. And my information indicates that the Federal Water 

Pollution Control Act Section 504 is the piece that the EPA administrator could use to seek immediate action. And Section 303 of the 

Clean Air Act allows EPA to bring action for relief as well. 

Mr. SHIMKUS. And it is your job as a commission member to ensure the environmental quality of the citizens of the State of Texas, 

is that correct? 

Ms. HILDEBRAND. Certainly. That role is very important to our 

agency. 

Mr. SHIMKUS. Thank you very much. 

And Mr. Bradley, just in response. 

Mr. BRADLEY. I agree with what was just stated and I was a little concerned about his wishy-washiness on phosphorous, et cetera, 

which clearly all science says that animal-procured phosphorous 

and phosphates are not the hazardous waste that the chemically 

manmade-produced are. They are totally different and I think he 

got confused there which kind of bothered me. 

Mr. SHIMKUS. Well, I thank you for your time. 

And now I would like to yield to the ranking member, Mr. Green, 

for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. 

And I think, you know, we are talking about the difference in 

size. You know, my average dairy farmer in Texas is really not that 

large compared to some other farms. And, in fact, let me ask my 

question of Ms. Hildebrand. One, I appreciate you being here. And 

127 

having served many years in the State legislature, I appreciate the 

diligence of our Texas Commission on Environmental Quality or 

whatever we call it now. I know that is the current name. 

Has the State of Texas ever used either Clean Water or Clean 

Air actions against, for example, you know, a huge facility whether 

it be for a large dairy facility or even a—I know up around Amarillo and parts of Texas we have huge stockyards that are really 

just factories for our beef. And we like it but we also know because 

the size of those facilities it may not be, you know, farmers running 

or ranchers running, you know, a few cattle on their hundred 

acres, which is not the issue. In fact, they probably recycle theirs 

as compared to a larger operation. Has the State ever used a Clean 

Air or Clean Water action on those? 

Ms. HILDEBRAND. Well, I know of a couple examples and I can 

give those to you in a written response. 

Mr. GREEN. OK. I would appreciate that. 

Ms. HILDEBRAND. But in general I would say that typically we 

have the authority under the Clean Air Act, both the Texas Clean 

Air Act and under the Federal and if, for example, there was a nuisance condition that occurred as a result of a large facility, we 

would go out and investigate because if a nuisance occurred as a 

result of something like that, we would expect there to be a permit 

issue. And so we would look for permit violations whether that is 

under the TPDS or under the Clean Air Act permit that they received, authorization. 

Mr. GREEN. OK. What if they don’t have a permit? 

Ms. HILDEBRAND. So those emissions that would come from the 

manure for air are authorized under permit-by-rule, so they may 

not have an explicit permit that they received from the State but 

they are authorized. Or they are operating under air emission allowances that are provided for in the water permit. 

Mr. GREEN. OK. Mr. Hopkins, I know there was a 2003 National 

Academy of Sciences issued a report on pollution from animal feeding operations. The Academy found that multiple operations emitted multiple pollutants including ammonia, hydrogen sulfide, particulate matter, and greenhouse gases. In 2011, EPA estimated 80 

percent of the U.S. ammonia emissions were from agricultural operations. What are the potential health impacts from large-scale 

ammonia emissions? 

Mr. HOPKINS. Well, ammonia emissions can cause a host of respiratory problems, eye, ear, nose, and throat problems. It is also a 

precursor to fine particular matter. Somewhere between 9 and 11 

percent of the Nation’s fin particulate matter has its origin in ammonia, so that is a very serious health problem as you know and 

that can, again, cause all kinds of respiratory and cardiovascular 

problems. 

Mr. GREEN. I only have a couple minutes left. We heard earlier 

today that other environmental laws and just now that address the 

risks and the liability and reporting requirements under Superfund 

are redundant and unnecessary. Are there provisions under other 

environmental laws that would require cleanup of contamination 

from manure and ensure that responsible parties will pay for that 

cleanup? 

Mr. BRADLEY. I will take a shot at that—— 

128 

Mr. GREEN. OK. 

Mr. BRADLEY [continuing]. Congressman Green. In the State of 

New Mexico, part of an answer to your earlier question, you know, 

the State of New Mexico took action on a spill into the Rio Grande 

River by a dairy. That dairy was sued; that dairy was ordered to 

clean up and to change their structure. They were in violation of 

their permit so they paid a fine, they paid their money, and the 

State of New Mexico does have a Superfund that they have created 

for spills because a lot of these people don’t have any money. We 

take all we got and then we go from there. 

Mr. GREEN. OK. So New Mexico has a State Superfund I guess 

for this so it is not under—— 

Mr. BRADLEY. But we also use the Clean Water Act, which is in 

coordination with our Surface Water Ground Bureau. 

Mr. GREEN. Ms. Hildebrand, is that similar to what we have in 

Texas? You know, I am under a disadvantage. I have a very urban 

area and, believe me, I have refineries and chemical plants fenceto-fence, so I am real familiar with that. But, you know, my ag 

area is just a little bit different so I am learning. 

Ms. HILDEBRAND. Certainly, as I understand it, the Texas Health 

and Safety Code and the Texas Water Codes allow for us to pursue 

relief from those facilities if there were an environmental issue 

that was resulting from their actions. 

Mr. GREEN. Including assigning responsibility to the party and 

making them pay? 

Ms. HILDEBRAND. I believe so. 

Mr. GREEN. OK. Mr. Hopkins? 

Mr. HOPKINS. Well, I would say it is not just a question of whether State regulatory agencies have the authority to do that but 

whether other parties like cities have the authority to do it. And 

I think that is an important facet that CERCLA provides that 

maybe these State laws don’t. 

Mr. GREEN. The example—and I only have a few seconds left— 

I know Waco and Waco had to sue. I assume they were suing under 

not only State law but also city ordinances in Waco, Texas? Because I think in Houston, you know, we have ordinances for public 

nuisances that could be applied maybe unless they are exempted 

by State law. 

Ms. HILDEBRAND. I think that the crux of their lawsuit—and 

again it was settled so it never went—the majority of their issue 

was violations associated with the Clean Water Act. Certainly 

CERCLA entered into it and there was a question about the phosphorous that I think Mr. Bradley talked about, but at the heart of 

the issue I think it was a Clean Water Act question. 

Mr. GREEN. OK. Mr. Hopkins, let me give you final if you have 

any—well, I am out of time—but just so you could respond. The 

current law is not available even to municipalities if they have an 

ordinance? 

Mr. HOPKINS. Yes, I think that the reason Waco used CERCLA 

was because they didn’t want their ratepayers to foot the bill for 

the pollution that they were having to clean up. 

Mr. GREEN. Yes. Well, and obviously I know about my Superfund 

sites and thank the Texas Environmental Quality, EPA on light 

129 

speed to put a facility—and we are still working on that by the 

way. The encapsulation I understand is not working. 

But anyway, thank you, Mr. Chairman, for the time. 

Mr. SHIMKUS. The gentleman is quite welcome. 

And we would like to thank the panel for being here and answering our questions. I think one thing to consider on CAFOs is the 

location. You know, most CAFOs are going to be in rural America 

addresses the ammonia debate. Concentration is a concern on air 

emissions but when you have got a CAFO that is in rural America, 

rural Illinois, and it is 20 miles from the nearest community, the 

ammonia issue and the intensity is not—I mean I think we have 

still got Clean Water Act issues, compounding issues, those are still 

in the debate. We think those are kind of covered. 

But having said this, Mr. Bradley? 

Mr. BRADLEY. I just wanted to make a quick clarification if I 

might about the Waco because I hear a lot about Waco in here 

today and there is a lot of bad information floating around. I think 

a little more research ought to be done—— 

Mr. SHIMKUS. Well, if the gentleman would yield, we are going 

to ask for the final judgment to be filed as part of this record because it addresses some of the questions that were raised I think 

especially on phosphorous that you had raised and the difference—— 

Mr. BRADLEY. Right. 

Mr. SHIMKUS [continuing]. On that so—— 

Mr. BRADLEY. OK. 

Mr. SHIMKUS [continuing]. A brief—— 

Mr. GREEN. Mr. Chairman, I know I am familiar also with the 

problem in rural areas, but what we are having in Houston—because I had a lot of dairy farmers up in Tomball, Texas, some good 

families, but because of the suburbanization of it, you know, the 

city has moved out there and it has made some conflicts that folks, 

when they moved there, they didn’t realize there was a dairy farm 

down the road. We have that same problem in other areas, too. But 

it can happen particularly in the suburbs growing out the rural—— 

Mr. SHIMKUS. Those city slickers coming out to rural America, 

they ought to—— 

Mr. GREEN. Yes. 

Mr. SHIMKUS [continuing]. Make sure they know what they are 

buying. 

So we have three submissions we would ask unanimous consent 

for. The first one is a letter from the National Association for PET 

Container Resources. 

[The information follows:] 

130 


81483.072

June 25, 2012 

The Honorable John Shimkus 

Chairman, Subcommittee on Environment and the Economy 

U.S. House Energy and Commerce Committee 

2125 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Shimkus: 

The National Association for PET Container Resources {NAPCOR) is pleased to support the 

Increasing Manufacturing Competitiveness Through Improved Recycling Act of 2012. 

The bill correctly points out that using recycled materials in manufacturing conserves energy, 

thereby reducing operating costs and making American manufacturing more competitive. 

Recycling also creates jobs-and not just the guys on the back of a collection truck. Every 1,000 

tons of PET recycled supports between 22 and 30 jobs in collection, sorting, processing and 

manufacturing. At least 10 of those jobs are skilled positions in manufacturing and processing. 

Furthermore, recycling can reduce local government waste disposal costs - ever more critical as 

our communities struggle through difficult economic times. 

As the saying goes, "You can't manage what you don't measure!" The bill would facilitate the 

collection of critical information on community recycling programs and the recycling industry 

that can help the industry grow and prosper. This will help the recycling industry to realize its 

full job creation, energy conservation and economic potential. Ultimately, it will help the 

United States' manufacturing base remain competitive into the future. 

Thank you for your consideration. NAPCOR looks forward to working with you to move forward 

on this critical issue. 

Sincerely, 

Dennis Sabourin 

Executive Director 

National Association for PET Container Resources (NAPCOR), PO Box 1327, Sonoma, CA 95476 tel: 70719964207 fax: 7071935-1998 www.napcor.com 
131 

Mr. SHIMKUS. The other one we will keep the record open for 10 

days and make sure we are able to see the letter that you had 

asked to be submitted, which is from the National Association of 

SARA Title III Program Officials. 

[The information follows:] 

132 


81483.073

July 3, 2012 

United States House of Representatives 

Committee on Energy and Commerce 

2125 Rayburn House OtTice Building 

Washington, DC 20515 

Re: Opposition to HR 2997 

Electronically Submitted 

Dear Chairman Upton, Ranking Member Waxman and all other Members: 

The National Association of SARA Title HI Program Officials (NASTTPO) is 

made up of members and staff of State Emergency Response Commissions (SERCs), 

Tribal Emergency Response Commissions (TERCs), Local Emergency Planning 

Committees (LEPCs), various lederal agencies, and private industry, Members include 

state, tribal, or local government employees as well as private sector representatives with 

Emergency Planning and Community Right to Know (EPCRA) program responsibilities, 

such as health, occupational satety, tirst response, environmental, and emergency 

management The membership is dedicated to working together to prepare for possible 

emergencies and disasters involving hazardous materials, whether they are accidental 

releases or a result of terrorist attacks, 

As an organization, NASTTPO is not taking a position on the environmental 

compliance record of confined animal feeding operations or farms, Rather, NASTTPO is 

commenting because we believe the proposed legislation threatens the integrity of the 

accidental release reporting system and, put bluntly, endangers the lives of rural tirst 

responders, 

The 911 call that comes in from a member of the public in the dark of night 

reporting a foul or chemical odor rarely contains information on the source, Ammonia 

odors may come from a variety of sources and "manure" is most Cetiainly one of the 

likely choices, Unfortunately, that information will not be known to the tirst responders, 

Perhaps the source is a truck accident It can also be someone opening an anhydrous 

ammonia nurse tank to steal that product for a drug lab, These scenarios threaten the 
133 


81483.074

lives of first responders and it is unreasonable to force them to guess at the source in the 

middle of the night. 

Release reporting by facilities under EPCRA provides crucial information to those 

responders. Without such information responders are forced to blindly drive through an 

area not knowing what they are looking for ,vjth a very great risk that they will drive into 

an anhydrous ammonia plume. If the facility has reported a release under EPCRA then 

the first responders can correlate that information as they plan their response. Without 

the release report they must assume the worst case and respond accordingly. or, most 

trouhling. respond assuming it's the animal feeding operation and be wrong with deadly 

consequences. 

It's simply inappropriate to deny first responders a release report. The burden on 

the industry is trivial. The consequences are potentially deadly. Congress should not 

adopt HR 2997 in its current form. 

Itno a e 10use 

Director. Govemment Relations 

Immediate Past-President 

410 lih St, Ste 1375 

Denver CO 80202 

(303) 572-0050 

Page Z 
134 

Mr. SHIMKUS. And then the last one, which I need to just be corrected on, it is a brief on the Waco case. So without objection—— 

Mr. GREEN. Whose brief is it? 

Mr. SHIMKUS. Well, we have already run it by the—— 

Mr. GREEN. Oh, have you? OK. Mr. Chairman, let me just look 

at it and see to see, you know—— 

Mr. SHIMKUS. OK. We will—— 

Mr. GREEN. Having done briefs, if my client wanted me to do 

one, I would do it. 

Mr. SHIMKUS. Well, we will do the same thing. We will do 10 

days, you guys have time to either accept or reject on that. 

Mr. GREEN. OK. 

Mr. SHIMKUS. And appreciate your time and effort and again 

thank you for coming. 

And this hearing is adjourned. 

[Whereupon, at 12:55 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

135 


81483.075

AMERICAN FARM BUREAU FEDERATION' 600 Maryland Ave. SW j SuUe 1000W ! Washington. DC 20024 

June 26, 2012 

The Honorable John Shimkus 

Chairman 

Subcommittee on Environment and the Economy 

Energy and Commerce Committee 

United States House of Representatives 

2452 Rayburn House Office Building 

Washington, DC 20515 

The Honorable Gene Green 

Ranking Member 

Subcommittee on Environment and the Economy 

Energy and Commerce Committee 

United States House of Representatives 

2470 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Shimkus and Ranking Member Green: 

The American Farm Bureau Federation (Farm Bureau) supports passage ofRR. 2997, the 

ph. 202.406.3600 

f. 202.406.3608 

www.fb.org 

Super fond Common Sense Act, and commends you for considering legislation to clarify that 

manure is not a "hazardous substance" under the Comprehensive Environmental Response, 

Compensation and Liability Act (CERCLA) or the Emergency Planning and Community Rightto-Know Act (EPCRA). The bill would make clear the original intent of these statutes, in 

addition to preventing unnecessary and burdensome monitoring and reporting requirements. This 

would bring livestock producers certainty and assurance relating to any potential Superfund 

liability. 

When originally passed by Congress, CERLCA was a response to the situations that arose in 

Love Canal and Times Beach, where responsibility for cleanup was unclear. Later, EPCRA was 

adopted in the wake of the Union Carbide disaster in Bhopal, India. In the last few years, some 

have sought to extend application of these laws to livestock operators by seeking to have manure 

and its different elements considered "hazardous substances" under CERCLA and EPCRA. H.R. 

2997 would make clear that manure was never intended to be covered by these environmental 

laws. 
136 


81483.076

Superfund was designed to mandate cleanup of compounds that are very harmful even in small 

amounts. Further, animal manure utilization in agriculture was not contemplated as a problem at 

the time Superfund was enacted. Most farms with animals could be exposed to severe liabilities 

and penalties as a result of being brought under the Superfund laws. 

Superfund already has a legacy of bankrupting small businesses caught in its path. Ifmanure is 

detemlined to be a hazardous substance, the cost of technical monitoring and compliance will 

drastically affect small- and medium-sized farmers the most, while large producers with far 

greater financial resources would be better able to absorb the compliance and cleanup costs. 

Farm Bureau supports passage of this CERCLAJEPCRA legislation and thanks you for your 

leadership on this important issue. 

Sincerely, 

~ Bob Stallman 

President 
137 


81483.077

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D,C, 20460 

Ut,I - 2 2012 

OFFICE OF CONGRESSIONAL 

AND INTERGOVERNMENTAL RELATIONS 

The Honorable John Shimkus, Chainnan 

Suhcommittee on Environment and the Economy 

Committee on Energy and Commerce 

U.s, House of Representatives 

Washington, DC 20515 

Dear Chainnan Shimkus: 

Thank you for your letter of August 10,2012, requesting responses to Questions for the Record 

following the June 27,2012, hearing before the Subcommittee on Environment and the Economy 

entitled, "the Increasing Manufacturing Competitiveness Through Improved Recycling Act and 

RR, 2997, the Superfund Common Sense Act" 

The responses to the questions are provided as an enclosure to this letter. If you have any further 

questions, please contact me or your staff may contact Carolyn Levine in EPA's Office of Congressional 

and lntergovemmental Relations at (202) 564-1859, 

Enclosure 

Sincerely, ~' 

A{)J);1}v g~ / ' 

Laura V aug~t Deputy Associate Administrator 

for Congressional Affairs 

cc: The Honorable Gene Green, Ranking Member 

Subcommittee on Envirorunent and the Economy 

Internet Address (URL) • http://www-epa.goY 

Recycled/Recyclable. Printed wIth Vegetable on Based !nks on Recycled Paper (Minimum 50% Postconsumer content) 
138 


81483.078

Questions for the Record 

House Subcommittee on Environment and the Economy 

June 27, 2012 Hearing on the Increasing Manufacturing 

Competitiveness Through [mproved Recycling Act and 

n.R. 2997, the Superfund Common Sense Act 

Questions for the Honorable Mathy Stanislaus, Assistant Administrator of the EPA 

Representative Henry Waxman 

Enclosure 

Four years ago, the Energy and Commerce Committee held a hearing on hazardous substances in 

manure, focused on a proposed administrative exemption from reporting requirements under 

CERCLA and EPCRA. At that time, we heard testimony from the Government Accountability 

Office tbat the EPA did not have sufficient data to understand emissions from farms and support 

such an exemption. The agency has responded to that criticism by collecting data and beginning 

analysis, secldng comments from the Scientific Advisory Board and the public. Tbese are positive 

developments, and precisely the kind of action the Committee supported in 2008. 

1. Was the 2008 exemption developed based on the results of the Air Compliance 

Agreement'? 

Response: No, the EPA developed the 2008 final rule, "CERCLAlEPCRA Administrative 

Reporting Exemption for Air Releases of Hazardous Substances from Animal Wasle at Farms," 

independently of the EPA's Air Compliance Agreement (with animal feeding operations). 

However, in the preamble of the 2008 final rule the EPA indicated that after completion of the 

National Air Emissions Monitoring Study (which is part of the Air Compliance Agreement) and 

the development and publication of emission estimating methodologies, the agency intends to 

review the monitoring study's results and consider if the thresholds for the EPCRA reporting 

exemption are appropriate. 

2. Is the EPA considering revising the 2008 exemption, and would that revision take into 

account the results of the Air Compliance Agreement? 

Response: Yes, the EPA filed a motion asking the U.S. Court of Appeals for the D.C. Circuit to 

remand the 200S final rule back to the agency for reconsideration after industry and 

environmental groups sued the agency over the rule. The court granted the EPA's motion in 

October 2010. The agency is now reconsidering the 2008 final rule, during which we will take 

into consideration the results of the National Air Emissions Monitoring Study as well as 

comments and concerns expressed by the industry and environmental groups. 

3. Will the concerns from the agricultural community that led to adoption of the 2008 

exemption be addressed by any potential revisions to the exemption? 

Response: The EPA intends to examine all relevant information as we move forward. 

Stakeholder input is an important part of developing any future policy. 
139 


81483.079

4. Will any revisions be promulgated through a transparent public process'! 

Response: Yes, the EPA intends to promulgate any revisions to the 2008 final rule through a 

notice and comment rulemaking process. 

S. If H.R. 2997 were enacted, what impact would the legislation have on the agency's ability 

to complete the transparent public revision process, and the agency's ability to utilize the 

data produced under the Air Compliance Agreement? 

Response: While enactment ofH.R. 2997 would not impact the EPA's ability to complete a 

transparent, public rulemaking process, it would impact potential agency substantive revisions to 

the 2008 final rule, including whether the EPA could utilize the emissions data gathered from the 

National Air Emissions Monitoring Study. 

6. Regarding the discussion draft ou information gathering on recycling and recovery, 

testimouy focused on the costs of implementing the legislation and the effectiveness of a 

voluntary data collection. You testified that implementation would cost $800,000 per year, 

and would take longer than provided in the legislation. How much would it cost the 

agency, in total, to implement the legislation, and what would be a more reasonable 

timcline for development of a useful rcport'! 

Response: As you noted, the EPA believes data collection and associated activities would cost 

the agency approximately $800,000 per year. The EPA also estimates that it would take 

approximately lour years for the EPA to develop and issue the data request and collect and 

analyze the submitted data, 

During the fourth panel of the hearing, questions were raised about the requirements of section 

3J 1(1) of the Clean Water Act, a statute that is outside of the Committee's jurisdiction. The 

suggestion was made that section 311(1) allows for cleanup cost recovery, rendering the 

requirements of CERCLA redundant. 

7. Section 311 applies to releases of oil and substances designated as hazardous under the 

Clean Water Act, which designation is limited to substances whose release into navigable 

waters may affect natural resources. Would all substances designated as hazardous under 

Superfund be covered by the provisions of Section 311? 

Response: No, the Comprehensive Environmental Response, Compensation. and Liability Act 

(CERCLA) defines hazardous substances as those either designated through regulation or 

designated under other environmental statutes. One such statute is the Clean Water Act (CW A). 

However, there are other statutes that have substances that mayor may not be identified as CW A 

hazardous suhstances, For example, biphenyl is a Clean Air Act (CAA) hazardous air pollutant 

and CERCLA hazardous substance, hut not a CW A hazardous substance, 

8. Section 311 applies to discharges into navigable waters. Would contamination of drinking 

water sources that are not navigable be covered'! 

Response: No, section 311 covers only those discharges or substantial threats of discharges into 

or upon the navigable waters of the United States, adjoining shorelines, or into or upon the 

2 
140 


81483.080

waters of the contiguous zone, or in connection with activities of the Outer Continental Shelf 

Lands Act or the Deepwater Port Aet of 1974, or which may affect natural resources belonging 

to, appertaining to, or under the exclusive management authority of the United States. It does not 

cover other discharges, even if they affect drinking water sources. 

9. The Supreme Court has recently interpreted the Clean Water Act to significantly reduce 

the geographic areas historically covered by the Clean Water Act. Would the Supreme 

Court's interpretation also significantly limit the geographic area for which relief under 

section 311 could be sought'? 

Response: Generally. yes. Reliefunder section 311 is limited to the discharges identified in 

section 311. The Supreme Com1's interpretation of the tenn "navigable waters" under section 

502 of the Clean Water Act is controlling. 

10. Is it correct that recovery under section 311 is limited to the costs of containment and 

removal of the oil or hazardous substance from "the water and shorelines"? Does the same 

limitation apply to cost recovery under Superfund? 

Response: Liability for cost recovery under section 311 (f) is for removal of a discharge of 

hazardous substances within the scope of, and in violation of, section 311(b)(3). By contrast, 

liability under CERCLA extends to all releases and threatened releases of CERCLA hazardous 

substances to the environment. 

11. Is it correct that section 3] 1(1) docs not allow cost recovery against owners or operators if 

a discharge resulted from an act of a third party? Does the same limitation apply to cost 

recovery under Superfund? 

Response: A person is not liable under either CERCLA or section 311(f) for pollution caused 

solely by a third party's act or omission. Both CERCLA and section 31 J provide subrogation 

rights f()r parties to assert contribution claims against a third party for pollution caused by that 

third party's act or omission. 

12. Is it correct that while section 311(t) allows the Federal government to recover cleanup 

costs, it docs not provide the same ability to municipalities or private parties conducting 

cleanups? 

Response: Yes, section 311 provides for liability for cost recovery only to the United States. 

13, Is it correct that liability under section 311(t) is capped unless the United States can show 

that the discharge resulted from willful negligence or willful misconduct'! 

Response: Yes. 

14. Given these limitations, is Supcrfund redundant to section 31 1(t) of the Clean Water Act? 

Response: No. CERCLA generally covers releases of more substances, and into morc 

environmental media than section 311 (1) of the CW A. 

3 
141 


81483.081

Questions also arose during the fourth panel about the potential overlap between the 

requirements of Superfund and EPCRA and other environmental statutes. 

15. One question concerned section 3007 of the Solid Waste Disposal Act, a provision withiu 

subtitle C of RCRA. Would the provisions of subtitle C of RCRA apply to manure, and if 

so, arc those requirements redundant to the requirements of Superfund? 

Response: In general, RCRA section 3007 would not be a provision which applies to the storage 

of manure and therefore would not be considered redundant to the emissions reporting 

requirements under CERCLA (Superfund), 

16. In general, do the requirements of subtitle C of RCRA complement or replicate the 

requirements of Superfund? 

Response: The provisions of Subtitle C ofRCRA can complement CERCLA requirements, 

RCRA Subtitle C regulations govern the generation, transportation, and treatment, storage. or 

disposal of hazardous waste, RCRA Subtitle C regulations help ensure that hazardous waste is 

properly disposed of and help ensure that releases are prevented, thus making Superfund 

response unnecessary, 

17. Do sections 7002 and 7003 of RCRA duplicate the requirements of EPCRA or Superfund? 

Response: RCRA sections 7002 and 7003 are not duplicative of EPCRA and CERCLA 

(Supcrllmd) emissions reporting requirements. 

18. Docs section 112 of the Clean Air Act duplicate the requirements of El'CRA or 

Superfund? 

Responsc: No, In broad terll1S, Clean Air Act (CAA) section 112 docs not include the response 

authorities of Superfund and the community-based information and emergency planning 

provisions of EPCRA. The "NESHAP" emission standard requirements and the accidental 

release rules under CAA section 112 do not apply to several of the hazardous substances 

regulated under CERCLA and EPCRA, Neither the NESHAP emission slandmu requirements nor 

the accidental release regulations under CAA section 112 require immediate notification of 

releases tbat exceed a CERCLA or EPCRA reportable quantity, 

In 2003, till' National Academy oISeicnccs issued a report on air pollution from animal feeding 

operations. The Academy found tbat these operations emitted multiple pollutants including 

ammonia, hydrogen sulfide, particulate matter, and greenhouse gases. In 2011, the EPA 

estimated that over 80% of U.S. ammonia emissions were from agricultural operations. 

19. What are the potential health impacts ofotmmonia emissions? 

Response: The EPA is currently developing air emission estimating methodologies based on the 

National Air Emissions Monitoring Study for various types of animal feeding operations, Tbe 

potential tor health impacts depends entirely on the concentrations of ammonia that arc emitted 

from these facilities, At sufficient concentrations, ammonia is known to cause irritation and 

burning to eyes, mouth, and lungs, Ammonia is also a precursor to ammonium nitrate and 

4 
142 


81483.082

ammonium sulfate, components of fine parliculate matter. Fine particulate matter can cause 

serious health problems such as aggravated asthma, decreased lung function, and premature 

death in persons with heart or lung disease. When released, ammonia can contribute to 

acidification of waterways and forests and add to nitrogen over-enrichment of sensitive 

ecosystems. 

20. Are there other air emissions from manure that pose a public health threat? 

Response: Known emissions from animal feeding operations in addition to ammonia, include 

hydrogen sulfide, particulate matter, volatile organic compounds, and greenhouse gases such as 

nitrous oxide, These air pollutants each have the potential for human health impacts when 

emitted in sunicient concentrations. The EPA Science Advisory Board is currently reviewing 

the emission estimating methodologies, developed from the National Air Emissions Monitoring 

Study. These methodologies will allow the EPA to more accurately estimate the emissions of 

various substances and determine whether they pose significant risk at current levels. 

21. What are the risks to human health and the environment from releases into soil and 

water? 

Response: Please see the responses to questions 19 and 20, Further health impact information 

can be ohtained tram the Agency for Toxic Substances and Disease Registry (ATSDR) with 

information associated with ammonia exposure at: 

http://\w/\v,atsdr,cdc,gov!substances!toxsubstance.asp?toxid~2 

A TSDR also has information about the health impacts associated with hydrogen sulfide exposure 

at: http://www.atsdr.cdc,gov/substanees/toxsubstance.asp?toxid~67 

Representative John Dingell 

1. Has any puhlic agency determined that a public health hazard existed based on the release 

of hydrogen sulfide at a dairy farm or other animal feeding operation'? 

Response: Yes, in 2009, the Minnesota Department of Health and the federal agency for Toxic 

Substances and Disease Registry (A TSDR) found that elevated emissions of hydrogen sulfide 

related to manure disposal at a dairy operation (Excel Dairy) posed a public health hazard. 

2. What size city would generate waste approximately equal to the amonnt of animal waste 

generated hy a CAFO, such as a large animal feeding operation or hog farm? 

Response: [n a 2004 CAFO related Risk Management Evaluation, the EPA estimated that a 

dairy operation with 2,500 cows could produce as much waste as a city of 41 J ,DOD residents, 
143 


81483.083

{ 'hninnml, t 

H,1HSV 

R<l:- hl!rt! I h)u~",> (HJI,('c 13uildint.! 

\\'a:;hillt!t\)!l. Dt' 

1.)11"," GPI', activities at the local, stalto and fcdentllr' cl tii improve the Stipp I)' 

('hain for n'c!drd nuth·rhds prm'ided a ht'tll!flt to tht~ gfu~"s intlHslr~"! 

\Vuuld Htt' (hlta -ami \.ul~lfy~js ()t'odu(('d unde-J" tht~ draft ic?,tslation provide- tt 

IH'ud1t 10 ftw p,bs:-> indu5tr~ ? 

in the 
144 


81483.084
145 


81483.085

Responses to Questions Raised by The Honorable Henry Waxman at the June 

27,2012 hearing before the Energy and Commerce Committee, Subcommittee 

on Environment and the Economy 

You noted in your testimony that recycling provides valuable raw material to 

American Industry. 

1. Would the data and analysis produced under this draft legislation 

provide a benefit to the paper industry? 

Improved data collection could potentially benefit the paper recycling 

industry, but it isn't as essential as educating the public about the need for 

increased recycling. The educational component of recycling collection 

has suffered greatly in the last few years and all commodities would benefit 

from increased recovery. 

2. Would the industry be willing to contribute to the costs of the data 

gathering and analysis envisioned in the draft legislation? 

Through the American Forest & Paper Association, the paper industry 

annually collects and analyses vast quantities of data. In an aggregated 

form, this information is provided to EPA for their annual report on 

Municipal Solid Waste in the United States. 

Sincerely Yours 

Jonathan M Gold 

Sr. VP 

Jonatfian 5W'. 90ft[ 

The Newark Group 
146 


81483.086

MJCHiGAN 

CHAIRMAN 

COMMITTEE ON ENERGY AND COMMERCE 

Ms. Susana M. Hildebrand 

Chief Engineer 

Texas Commission on Environmental Quality 

12100 Park 35 Circle 

Austin, TX 78753 

Dear Ms. Hildebrand: 

BUILDING 

August 10,2012 

HrNRY A WAXMAN, CALIFORNIA 

RANKING MEMBER 

Thank you for appearing before the Subcommittee on Environment and the Economy on June 27,2012, 

to testify at the legislative hearing to consider a discussion draft entitled "The lncreasing Manufacturing 

Competitiveness Through Improved Recycling Act of2012," and H.R. 2997, "The Superfund Common Sense 

Act." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains open for 

10 business days to permit Members to submit additional questions to witnesses, which are attached. The 

fonnat of your responses to these questions should be as follows: (1) the name of the Member whose question 

you are addressing, (2) the complete text of the question you are addressing in bold, and then (3) your answer to 

that question in plain text. 

To facilitate the printing of the hearing record, please e-mail yourresponses~inWordorPDPformat.to 

j'Jick.Abraham@maiLhQuse.gov by the close of business on Friday August 24, 2012. 

Thank you again for your time and effort preparing and delivering testimony before the Subcommittee. 

i cerely, 

ohn Shimkus 

hairman 

Subcommittee on Environment and the Economy 

cc: The HQnorable Gene Green, Ranking Member, 

Subcommittee on Environment and the Economy 

Attachments 
147 


81483.087

The Honorable John Shimkus 

L Is there confusion between the element phosphorus, which EPA lists as a hazardous substance under 

CERCLA, and the compound phosphate? 

a, Does cow manure contain on and not the other? 

b, Why is this distinction important? 

2, Do you have any comments on the attached letter submitted for the record? 

a, The letter presumes that reporting releases from an animal feeding operation under EPCRA would 

prevent first responders from 'driving into; situations that the letter seems to recognize may actually 

be perilous, like an anhydrous ammonia plume, - would that be the case? And if so, how? 
148 


81483.088

Concerned the F",pro"""~J 

July 3, 2012 

United States House of Representatives 

Committee on Energy and Conunerce 

2125 Rayburn House Office Building 

Washington, DC 20515 

Re: Opposition to HR 2997 

ElectronicaUy Submitted 

Dear Chairman Upton, Ranking Member Waxman and all other Members: 

Act 

The National Association of SARA Title III Program Officials (NASTTPO) is 

made up of members and staff of State Emergency Response Commissions (SERCs), 

Tribal Emergency Response Commissions (TERCs), Loeal Emergency Planning 

Committees (LEPCs), various federal agencies, and private industry. Members include 

state, tribal, or local govermnent employees as well as private sector representatives with 

Emergency Planning and Right to Know (EPCRA) program responsibilities, 

such as health, occupational safety, first response, environmental, and emergency 

management. The membership is dedicated to working together to prepare for possible 

emergencies and disasters involving hazardous materials, whether they are accidental 

releases or a result of terrorist attacks. 

As an organization, NASTfPO is not taking a position on the enviromnental 

compliance record of contlned animal feeding operations or farms. Rather, NASTTPO is 

commenting because we believe the proposed legislation threatens the integrity of the 

accidental release rp1'1,nrtino- system and, put bluntly, endangers the lives of rural first 

responders, 

The 911 call that comes in from a member of the public in the dark of night 

reporting a foul or chemical odor rarely contains infornlation on the source. Annuonia 

odors may come from a of sources and "manure" is most certainly one of the 

likely choices. Unfortunately, that information will not be known to the first responders. 

Perhaps the source is a truck accident It can also he someone opening an anhydrous 

ammonia nurse tank to steal that product for a drug lab. These scenarios threaten the 
149 


81483.089

lives of first responders and it is unreasonable to force them to guess at the source in the 

middle of the night. 

Release reporting by facilities under EPCRA provides crucial information to those 

responders. Without such information responders are forced to blindly drive through an 

area not knowing what are looking for with a very great risk that they will drive into 

an anhydrous ammonia plume. If the facility has reported a release under EPCRA then 

the first responders can correlate that information as they plan their response. Without 

the release report they must assume the worst case and respond accordingly, or, most 

troubling, respond assuming it's the animal operation and be wrong with deadly 

consequences. 

It's simply inappropriate to deny first responders a release report. The burden on 

the industry is trivial. The consequences are potentially deadly. Congress should not 

adopt HR 2997 in its current form. 

I a e ouse 

Director, Government Relations 

Immediate Past-President 

410 17th St, Ste 1375 

Denver CO 80202 

(303) 572-0050 

Page 2 
150 


81483.090

Bryan W. Shaw, Ph.D" Chairman 

Carlos Rubinstein, Commissioner 

Toby 13<11(1.:1', Commissioner 

Zak Coval', ExccutJ'u{; Dit'ectar 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Pl'otecNng Texas by Redwing and Preventing Pollution 

The Honorable John Shimkus 

Chairman 

August 24, 2012 

Subcommittee on Environment and the Economy 

212,5 Rayburn House Office Building 

Washington, DC 20,515-6115 

Re: Additional questions from legislative hearing before the Subcommittee on 

Environment and the Economy ,Tune 27, 2012. 

Dear Mr. Shimkus, 

Thank you for the opportunity of appearing before the Subcommittee on Environment 

and the Economy on June 27, 2012, to testify at the legislative hearing discussion 

entitled, "The Increasing Manufacturing Competitiveness Through Improved Recycling 

Act of 2012," and H .R. 2997, "The Superfund Common Sense Act." 

In response to your Jetter dated August 10, 2012, I have addressed the additional 

submitted questions from the hearing in the attached document. I hope you find them 

informative and helpful for any further discussions. 

Please feel free to contact me with any other questions you may have at 512-239-4696 or 

susana.hildebrand@tceq.texas.gov. 

Sincerely, 

3u!J411LkilcfJ£oC 

Susana M. Hildebrand, P.E. 

Chief Engineer 

H,)w Ison1' customer sBtvice? tC{!q,t('XilS.f.\ov/'~l1slonlN'sm'Vey 
151 


81483.091

Additional questions from the Subcommittee on Environment and the Economy from 

the June 27th, 2012 legislative hearing entitled "The Increasing Manufacturing 

Competitiveness Through Improved Recycling Act of 2012" and H.R. 2997 "The 

Superfund Common Sense Act." 

The Honorable John Shimkus: 

1. Is there confusion between the clement phosphorus, which EPA lists 

as a hazardous suhstance undcr CERCLA and the compound 

phosphate? 

Yes, it appears that some have confused these two substances. There is a 

significant difference between the physical and chemical properties of the 

element phosphorus and compounds containing phosphates. This is especially 

true of phosphate compouuds in manure. The elemental form of phosphorus that 

EPA lists as a hazardous substance under CERCLA is highly toxic and extremely 

reactive in that it will burn spontaneously when exposed to air. The elemental 

form of phosphorus does not occur naturally; it is produced through industrial 

processes and used to manufacture munitions, pesticides, ferti1i7.ers, and other 

chemicals. Elemental phosphorus occurs as P4, Le., four atoms of phosphorus 

bonded together. 

Phosphate compounds, as a gronp, are not listed as hazardous substances under 

CERCLA. Phosphate compounds consist of one phosphorus atom surrounded by 

four oxygen atoms, I.e., P01, Phosphates are usually nsed as compounds of 

phosphate ions in combination with one or more common clements, such as 

sodium, calcium, potassium, and aluminum. Phosphate compounds and products 

are a significant part of everyday living. Monocalcium phosphate is used as a 

leavening agent in baking to make biscuits tender. Dicalcium phosphate is used 

as a polishing agent in toothpaste, and tricalcium phosphate is the conditioning 

agent in salt that keeps it flowing freely. In combination v\~th calcium, an 

ongoing phosphorus supply (in the form of phosphates) is essential to 

maintaining healthy bones and teeth and proper blood chemistry. Phosphates 

are also contained in both commercial feltilizers as wen as natural fertilizers, 

such as animal manure, that has been used for centuries as a soil supplement. 

In natural systems, such as soil and water, phosphorus exists as phosphate 

compounds, rather than its elemental state. 

a. Does cow nlanl.ll'e contain one and not the othel"? 

Yes, as stated above, the elemental form of phosphorus does not occur 

naturally. Cow manure contains various inorganic and organic 

phosphate compounds and docs not contain elemental phosphorus, 

h. "Why is this distinction important? 

The distinction is important because the phosphate compounds in 

manure do not exhibit the highly toxic or reactive properties of 

elemental phosphorus that are the basis for listing elemental 

phosphorus as a CERCLA hazardous substance. The reporting 

Hildebrand, August 24, 2012 
152 


81483.092

Additional questions from the Subcommittee on Environment and the Economy from 

the June 27th, 2012 legislative hearing entitled "The Increasing Manufacturing 

Competitiveness Through Improved RecycHng Act of 2012" and H.R. 2997 "The 

Superfund Common Sense Act." 

requirements associated I",tth CERCLA and EPCRA are not intended 

for biological processes that occur in nature on a daily basis. The 

requirements for repolting should be emergency event driven. The 

occurrence of phosphates in manure does not constitute an emergency 

event. 

2. Do you have any commcnts on the attached lettcr submitted for the 

record? 

a. The letter presumes that reporting rcleases from an 

animal feeding operation under EPCRA would prevent first 

responders from driving into: situations that the letter seems to 

recognize may actually be pcrilous, like an anhydrous ammonia 

plumc, - would that be the case? And if so, how? 

Emissions from agricultural manure do not create a need for 

emergency response because they occur at very low levels and disperse 

rapidly. Emergency responses under CERCLA and EPCRA are 

designed to provide for rapid response to true health emergencies, sueh 

as oil spills or chemical fires. It is not reasonable to require any entity 

to report a nonhazardous substance release in order to inform first 

responders that the nature of the release is in fact nonhazardous. What 

the letter states as a case for reporting animal feeding operations 

(AFO) emissions under RPCRA is really just the opposite and could 

result in first responders not being prepared to deal with a truly 

hazardous release from another source that is occurring at the same 

time. Passage of H.R. 2997 "The Superfund Common Sense Act" 

clarifying that cow manure and animal digestive processes are not 

subjeet to emergency reporting under EPCRA would prevent the first 

responders from constantly having to respond to the daily operations 

of an AFO. We do not call out the fire department just because 

someone strikes a match to light the birthday candles. If we did, 

reports of burning buildings would be shrouded by the clutter of 

reporting every day non-emergency events. First responders need to 

know that if they are responding to an event that it is truly hazardous 

NOT just another natural occurrence. 

Hildebrand, August 24, 2012 
153 


81483.093

July 20, 2012 

51 ERRA 

CLUB 

The Honorable John Shimkus 

Chair, Environment and Economy 

Subcommittee 

U.S. House of Representatives 

Washington, DC 20515 

The Honorable Gene Green 

Ranking Member, Environment and Economy 

Subcommittee 

U.s. House of Representatives 

Washington, DC 20515 

Dear Chairman Shimkus and Ranking Member Green: 

Thank you for the opportunity to testify concerning H.R. 2997 on June 27. I am writing to 

respond for the record to questions that Chairman Shimkus asked me. 

First, you asked whether Sierra Club was involved in litigation over the December, 2008, final 

rule that provided reporting exemptions for air releases of hazardous substances from animal 

waste. Sierra Club was one of many organizations involved in this litigation. 

You stated that you thought that Section 311 of the Clean Water Act provided authority for 

cities to recover damages for contamination of their drinking water supplies by animal feeding 

operations, as the Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA) does, and asked if Sierra Club agreed. Our view is that Section 311 does not empower 

local authorities to recover monies expended cleaning up hazardous substance releases 

through cost recovery actions like the ones brought by Waco and Tulsa. Based on the statutory 

language, it appears that only the federal government can initiate cost recovery actions. 33 

U.s.c. § 1321(f)(2) ("The United States may bring an action against the owner or operator. . to 

recover [removal] costs."). 

You asked whether the bill amends sections of the Solid Waste Disposal Act that provide for 

citizen suits and authorize the EPA administrator take enforcement actions. The bill does not 

amend the Solid Waste Act, but the sections of the law you mentioned (42 U.S.C § 7002 and 

7003) do not provide cities with the ability to recover costs they incur to treat water 

contaminated with wastes from livestock and poultry facilities, as CERCLA does. Moreover, the 

law expressly provides that it does not apply to "any activity or substance" that is already 

regulated under the Clean Water Act. 42 U.S.c. § 6905(a). Concentrated Animal Feeding 

Operations are regulated under the Clean Water Act's NPDES program, so they are exempt 

from regulation under Resource Conservation and Recovery Act. 

Finally, you asked whether the bill amends Section 112 of the Clean Air Act. It does not amend 

the Clean Air Act, but neither ammonia nor hydrogen sulfide, the principal air pollutants 

generated by animal waste, are regulated as hazardous air pollutants, and this provision of the 

SO F Street. NW. Eighth Floor. Washington. DC :'0001 TFL: (202) 547-1 141 FAX: (202l 547-6009 www.siwacJub.org 
154 


81483.094

Clean Air Act has never been used to control toxic air emissions from animal waste. In any case, 

CERCLA requires reporting of releases over a certain threshold; it does not set emissions 

standards or require pollution controls. 

In conclusion, CERCLA provides a critical and unique tool to enable communities whose water 

supplies have been contaminated with animal waste to seek to recover cleanup costs. While 

federal and state governments have authority under other statutes to regulate pollution from 

animal feeding operations, often they fail to take appropriate action. CERCLA provides the 

authority that communities need to protect themselves and their ratepayers from footing the 

bill for cleanup costs imposed on them by animal feeding operations that fail to manage their 

waste properly. For these reasons, we oppose H.R. 2997. 

Thank you for the opportunity to testify and to respond to your questions. 

Sincerely, 

Ed Hopkins 

Director, Environmental Quality Program 

50 F Street. NW, Eighth Floor, Washington, DC 20001 TFL: (202) 547-1141 FAX: (202) 547-6009 www.sierracillb.org 
155 


81483.095

The Honorable Henry A. Waxman 

During the bearing, you were asked about the effect of H.R. 2997 on provisions in 

several environmental laws, without being given an opportunity to offer your view on the 

applicability of those provisions to address contamination from manure. 

1. You were asked whether H.R. 2997 would affect section 3007 of the Solid Waste Disposal Act, 

a provision within Subtitle C of RCRA. Would section 3007 of the Solid Waste Disposal Act 

apply to contamination from manure? 

Section 3007 of the Solid Waste Disposal Act concerns inspections of facilities that generate, 

store, treat, transfer, dispose of or otherwise handle hazardous waste. Since manure is not a 

hazardous waste and animal feeding operations are not regulated as hazardous waste handling 

facilities under RCRA, Section 3007 would not apply. 

2. In general, do the requirements of Subtitle C of RCRA complement or replicate the 

requirements of Superfund? 

Subtitle C of RCRA was intended to complement the Superfund law, not replicate it RCRA 

expressly provides that it does not apply to "any activity or substance" that is already 

regulated under the Clean Water Act. 42 USc. § 6905(a). Concentrated Animal Feeding 

Operations are regulated under the Clean Water Act's NPDES program, so if these 

operations have Clean Water Act permits to discharge pollutants, their permitted discharges 

are exempt from regulation under Resource Conservation and Recovery Act 

3. You were asked whether H.R. 2997 would affect sections 7002 and 7003 of RCRA. Would 

sections 7002 and 7003 of RCRA apply to contamination from manure? 

Animal manure is not a hazardous waste under RCRA. Unless animal feeding operations are 

treating, storing or disposing of hazardous waste, these provisions of RCRA would not apply. 

4. In general, do the requirements of section 7002 and 7003 of RCRA duplicate the requirements 

of EPCRA or Superfund? 

These sections of RCRA do not duplicate the requirements of EPCRA or Superfund. These 

provisions do not require reporting emissions, as EPCRA and CERCLA do. Nor do these 

provisions provide communities with the ability to recover costs they incur to treat water 

contaminated with wastes from livestock and poultry facilities, as Superfund does. 

5. You were asked whether H.R. 2997 would affect section 112 of the Clean Air Act. Would 

section 112 ofthe Clean Air Act require reporting of emissions associated with manure? 

Section 112 of the Clean Air Act does not require reporting of emissions associated with 

manure. 

6. Does section 112 of the Clean Air Act duplicate the requirements of EPCRA or Superfund? 
156 

Æ 


81483.096

Section 112 of the Clean Air Act does not duplicate the requirements of EPCRA or Superfund. As 

noted above, it does not require reporting of emissions. Nor does it duplicate Superfund's 

provisions that provide local and state governments with the ability to recover costs they incur 

for cleaning up waters contaminated with animal waste.