Statement of Congressman John D. Dingell, Ranking Member
Committee on Energy and Commerce

SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS
HEARING ENTITLED “SUPERFUND LAWS
AND ANIMAL AGRICULTURE

November 16, 2005

Mr. Chairman, I commend you for holding this oversight hearing. The recent misguided effort to circumvent the expertise and jurisdiction of this Subcommittee and the full Committee on Energy and Commerce through inserting language in the Agriculture Appropriations Conference Report has raised the issue of exempting large concentrated animal feeding operations (CAFOs) from the Superfund statute and the Emergency Planning and Community Right-to-Know Act (EPCRA).

It is important that we get accurate facts before the Subcommittee and the Congress about these two statutes and the issues they realistically present to family farms as opposed to large industrial-sized CAFOs. I chaired the 1986 Conference Committee that reauthorized the Superfund program in the Superfund Amendments and Reauthorization Act of 1986 and I do not recall any discussion or intent to exempt “manure” from the definition of “hazardous substances” or “pollutant or contaminants.” Nor does the Conference Report discuss a “manure” exemption from the definition of “hazardous substances.”

Since petroleum and natural gas are clearly excluded from the definition of “hazardous substances,” Congress knew how to create exclusions and it is erroneous to say that Congress intended to do so for “manure.”

The statute does exclude the “normal application of fertilizer” from the Superfund definition of “release.” There is also legislative history stating that “the term ‘normal field application’ means the act of putting fertilizer on crop or cropland, and does not mean any dumping, spilling, or emitting, whether accidental or intentional, in any other place or of significantly greater concentrations or amounts than are beneficial to crops.” The determination of what is “normal” appears to be a fact-specific decision based upon the circumstances of the application.

Further, there is also a defense to liability if the release is “federally permitted release” such as a permitted release under the Clean Water Act.

Congress thus created several defenses to liability for agricultural operations in the Superfund statute.

 On a broader level, we can find only three cases where the response authorities of Superfund have attempted to be used with respect to agricultural operations. Two cases involved city governments, Waco, Texas, and Tulsa, Oklahoma, which brought actions to protect drinking water supplies from phosphorus pollution related to dairy and poultry operations. The third case is an action by the State of Oklahoma for recovery of costs and natural resource damages in the Illinois River Watershed alleging injury and destruction of fish, wildlife, biota, groundwater, and drinking water supplies from improper poultry waste disposal practices.

We should also recognize that there is no citizen suit provision to enforce the response authorities, natural resource damage, or injunctive relief authorities of the statute. In addition, no civil penalties can be assessed since the core provisions of Superfund are remedial, not regulatory, in nature.

There is, however, one reporting requirement in Section 103 of Superfund and a similar reporting requirement in EPCRA for releases of hazardous and extremely hazardous substances above “reportable quantities” established by the Environmental Protection Agency (EPA).

Here again, we can find only a handful of cases for failure to report releases of ammonia or hydrogen sulfide above the reportable quantity of 100 pounds per day. While the statute authorizes civil penalties, no civil penalties were assessed for the Superfund or EPCRA reporting violations in these cases.

I am, however, interested in whether the reportable quantity limits would have a burdensome effect on family farms. What is the size of herd or flock that would likely trigger the reporting requirements for ammonia and hydrogen sulfide? Is the EPA, which has administrative authority to adjust them, considering guidance to family farms to lessen the anxieties that may have been created or is the EPA already considering adjustments to the reportable quantity limit?

Finally, Mr. Chairman, although you did not want this hearing to explore the issue, this Committee, which has jurisdiction over “public health,” should examine the impact, if any, of large industrial-sized poultry CAFOs and the proximity of poultry CAFOs to industrial-sized hog farms on the spread of infectious diseases, including Avian flu.

I look forward to the testimony of our witnesses.

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(Contact: Jodi Seth, 202-225-3641)