Text: S.Hrg. 115-237 — LEGISLATIVE HEARING ON S. 2421, THE FAIR AGRICULTURAL REPORTING METHOD ACT
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[Senate Hearing 115-237]
[From the U.S. Government Publishing Office]
S. Hrg. 115-237
LEGISLATIVE HEARING ON S. 2421, THE FAIR AGRICULTURAL REPORTING METHOD
SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, AND REGULATORY OVERSIGHT
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
MARCH 8, 2018
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FIFTEENTH CONGRESS
JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma THOMAS R. CARPER, Delaware,
SHELLEY MOORE CAPITO, West Virginia Ranking Member
JOHN BOOZMAN, Arkansas BENJAMIN L. CARDIN, Maryland
ROGER WICKER, Mississippi BERNARD SANDERS, Vermont
DEB FISCHER, Nebraska SHELDON WHITEHOUSE, Rhode Island
JERRY MORAN, Kansas JEFF MERKLEY, Oregon
MIKE ROUNDS, South Dakota KIRSTEN GILLIBRAND, New York
JONI ERNST, Iowa CORY A. BOOKER, New Jersey
DAN SULLIVAN, Alaska EDWARD J. MARKEY, Massachusetts
RICHARD SHELBY, Alabama TAMMY DUCKWORTH, Illinois
CHRIS VAN HOLLEN, Maryland
Richard M. Russell, Majority Staff Director
Gabrielle Batkin, Minority Staff Director
Subcommittee on Superfund, Waste Management,
and Regulatory Oversight
MIKE ROUNDS, South Dakota, Chairman
JERRY MORAN, Kansas CORY A. BOOKER, New Jersey,
JONI ERNST, Iowa Ranking Member
DAN SULLIVAN, Alaska BERNARD SANDERS, Vermont
JOHN BARRASSO, Wyoming (ex officio) CHRIS VAN HOLLEN, Maryland
THOMAS R. CARPER, Delaware (ex
C O N T E N T S
MARCH 8, 2018
Rounds, Hon. Mike, U.S. Senator from the State of South Dakota... 1
Booker, Hon. Cory A., U.S. Senator from the State of New Jersey.. 2
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 4
Fischer, Hon. Deb, U.S. Senator from the State of Nebraska....... 8
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 9
Mortenson, Todd, Mortenson Ranch, member, National Cattlemen's
Beef Association............................................... 11
Prepared statement........................................... 14
Responses to additional questions from:
Senator Barrasso......................................... 20
Senator Ernst............................................ 21
Satterfield, Bill, Executive Director, Delmarva Poultry Industry,
Prepared statement........................................... 25
Responses to additional questions from Senator Barrasso...... 30
Response to an additional question from Senator Ernst........ 31
Kuhn, Mark, Floyd County Supervisor, Floyd County, Iowa.......... 32
Prepared statement........................................... 34
Response to an additional question from Senator Ernst........ 57
Text of S. 2421, the Fair Agricultural Reporting Method Act...... 107
Letter to Senators Barrasso, Rounds, Carper, and Booker from
Marti and Larry Olesen et al., March 7, 2018................... 111
Letter to Senators Barrasso, Rounds, Carper, and Booker from the
Animal Legal Defense Fund et al., March 9, 2018................ 122
LEGISLATIVE HEARING ON S. 2421, THE FAIR AGRICULTURAL REPORTING METHOD
THURSDAY, MARCH 8, 2018
Committee on Environment and Public Works,
Subcommittee on Superfund, Waste Management,
and Regulatory Oversight,
The Committee met, pursuant to notice, at 10:03 a.m. in
room 406, Dirksen Senate Office Building, Hon. Mike Rounds
(Chairman of the Subcommittee) presiding.
Present: Senators Rounds, Booker, Moran, Ernst, Van Hollen,
Barrasso, Carper, Inhofe, Boozman, Wicker, Fischer, and Markey.
OPENING STATEMENT OF HON. MIKE ROUNDS,
U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA
Senator Rounds. Well, good morning.
The Environment and Public Works Subcommittee on Superfund,
Waste Management, and Regulatory Oversight is meeting today to
conduct a legislative hearing on S. 2421, the Fair Agricultural
Reporting Method, or FARM Act.
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, or CERCLA, was established to manage
hazardous waste and respond to environmental emergency spills
and natural disasters. Under CERCLA, the owner or operator of a
facility must report the release of a certain amount of
hazardous substance to authorities within 24 hours. This is to
make certain that first responders have the information they
need to adequately respond to a release of a hazardous
substance into the environment and surrounding community.
Although ammonia and hydrogen sulfide are both considered
hazardous substances under CERCLA, and both are emitted into
the air from animal manure, Congress never intended normal
agricultural operations and American farmers to be subject to
the reporting requirements under these laws. CERCLA was
intended to make certain State and Federal officials have the
information they need in the event they have to respond to an
emergency release of a hazardous substance. It is unlikely
Federal officials would be required to respond to an emergency
release at a cattle operation or a poultry farm, particularly
one resulting from animal waste or emissions.
Further, it is unlikely the U.S. Coast Guard, which
coordinates CERCLA reporting, has the resources to manage the
nearly 200,000 farms that would be required to report their
daily activities under this rule. This additional burden on
resources could potentially hinder the ability of first
responders to respond to real emergencies.
Accordingly, in 2008 the Environmental Protection Agency
released a rule exempting animal waste at agricultural
operations from CERCLA reporting. However, in 2017 the D.C.
Circuit Court, in Waterkeeper Alliance v. EPA, vacated the
EPA's 2008 rule. This decision leaves approximately 200,000
American farmers subject to bureaucratic and burdensome
reporting and paperwork, the requirements that may overwhelm
first responders, while the benefits of this regulation are
questionable at best.
That is why I have worked with Senator Fischer, Chairman
Barrasso, Ranking Member Carper, and the rest of my bipartisan
colleagues to introduce the Fair Agricultural Reporting Method,
or FARM Act. This legislation would reinstate the CERCLA
reporting exemption for air emissions from animal wastes so
that American farmers and ranchers will not be burdened by
needless Federal regulations and can continue to do what they
American farmers and ranchers are already required to
comply with multiple Federal regulations governing how they run
their operations. Complying with these Federal regulations
requires hours of paperwork, time, money, and resources, all of
which take away from actually being able to work on their land.
We should not make them subject to additional layers of
bureaucracy that Congress never intended them to be subject to.
It should also be noted that CERCLA is the basis for EPA's
Superfund program. This law was intended to allow the EPA to
coordinate cleanups of hazardous waste or Superfund sites. A
U.S. farm or ranch is most certainly not a Superfund site and
should not be regulated as such. The FARM Act prevents U.S.
farmers and ranchers from being subject to needless regulations
that have no environmental benefit.
I would like to thank Senator Fischer and Chairman Barrasso
for their leadership on this issue. I am glad we were able to
work in a bipartisan fashion to move this bill forward.
Our witnesses today are members of the agricultural
community, with decades of experience in farming and ranching.
They are well versed in agricultural operations and how Federal
regulations affect their way of life, and their ability to do
business and provide the food that we all rely on.
I would like to thank our witnesses for being here today
with us, and I look forward to hearing their testimony.
Now I would like to recognize Senator Booker for a 5 minute
OPENING STATEMENT OF HON. CORY A. BOOKER,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Booker. I am really grateful, Chairman Rounds, to
be able to serve with you on this Committee; it is exciting to
have the opportunity to partner with you. I hope it is as well
as my partnership with Senator Fischer. She and I were a great
tag team. She is still mad at me for leaving her in the other
But I want to thank our witnesses for being here today. I
think this is just a really important conversation. The issue
of air emissions from large CAFOs and the impact of those
emissions on neighboring property owners is indeed a very
serious issue, life threatening issue.
As animal waste breaks down, it emits dangerous pollutants,
specifically ammonia and hydrogen sulfide, as the Chairman
said. To protect the health of the small family farmers and
other residents who live near these massive CAFOs, there are
currently two laws that require reporting of emissions of
ammonia and hydrogen sulfide at levels of 100 pounds per day.
The first law, CERCLA, which the Chairman mentioned,
requires reporting of these emissions to the Coast Guard
National Response Center. The second law, EPCRA, requires
reporting of emissions from extremely hazardous substances to
State and local authorities. In 2008 again, as the Chairman
detailed, the EPA attempted to exempt all CAFOs from having to
report their emissions under CERCLA, and also attempted to
exempt all but the largest CAFOs from reporting under EPCRA.
Last year, the D.C. Circuit Court struck down the attempt
by the EPA to exempt reporting emissions of hydrogen sulfide
and ammonia from CAFOs. The D.C. Circuit Court, in its
decision, stated the risk of harm of those emissions isn't just
theoretical; people have become seriously ill and even died as
a result of them.
EPA itself has found that hydrogen sulfide can cause
respiratory irritation and cause central nervous system effects
1 mile downwind when emitted at current reportable quality of
100 pounds per day. Of those affected, children are the most at
risk for lung disease and health effects, and the closer a
child lives to a CAFO, the greater the risk of asthma symptoms.
At the last meeting of this Committee, I talked about my
2016 trip to Duplin County, North Carolina. Given the focus of
today's hearing, I want to again talk about my trip and my
firsthand experiences going to Duplin County.
In 2016 residents from Duplin came to Washington, telling
lawmakers that they desperately needed help. There are about
60,000 people that live in Duplin County, but there are more
than 2 million pigs being raised there. And the primary way
that the waste from those 2 million pigs is disposed of is by
piping it into huge, open air lagoons and then spraying the
waste out onto open fields, what I witnessed myself, with my
These residents that came to Washington complained about
suffering from serious respiratory problems such as asthma and
chronic lung disease caused by living near these lagoons and
spray fields. So, when I visited Duplin County, I wanted to see
these conditions firsthand, and what I saw there is something I
will never, ever forget.
I saw pig waste being sprayed; I saw how the wind was
carrying the mist. Some of the spray would fall, but I watched
it mist onto adjacent properties. I smelled what was a
wretched, horrible smell standing hundreds and hundreds of
yards away, and how that smell permeated the entire community.
I heard heartbreaking stories from residents who said they too
often felt like prisoners in their own homes.
In fact, I met a veteran from foreign wars who said I
fought for my country overseas, and I came back and am a
prisoner in my own home. They talked about how they no longer
can have cookouts in their backyards; that they can't even open
their windows or run their air conditioning because of that
So when we have legislation before us that would create
exemptions from reporting, I think we need to be very careful
how we proceed. Under current law, we still have communities
like Duplin County, where people are truly suffering, where
their rates of respiratory illness and other diseases are
higher than the general population.
I was happy to see that this bill, S. 2421, only proposes
to exempt CAFOs from reporting under CERCLA, and not under
EPCRA. And I know that Senator Carper and others fought to
limit the scope of the bill before signing on. But the problem
is that the EPA is again taking action to exempt CAFOs from
having to report these emissions under EPCRA. If the EPA is
successful in creating a complete exemption, local residents
will no longer have access to information about the levels of
these harmful chemicals being emitted literally into their
front yards, as I know we will see from one witness.
Some farmers should not have to file unnecessary paperwork.
I believe that very strongly. And ranchers who engage in
pasture based farming, like Mr. Mortenson does, should not have
to calculate emissions and file forms.
But larger CAFOs are a different story. The type of
operations that I saw in North Carolina, and the type in Iowa
that Mr. Kuhn will describe in his testimony, create serious
health risks. This is about people. This is about their lives,
their livelihoods, their property values, and their health. And
as it currently stands, reporting under EPCRA is not difficult;
large CAFOs have been doing it for years, and a reporting
mechanism is already in place.
So, I hope that between Congress and the EPA we can find a
path forward that gives clarity to small farmers that they do
not need to report their emissions, but that continues to
require reporting under EPCRA by CAFOs that emit over 100
pounds per day of ammonia or hydrogen sulfide, serious
Thank you, Senator Rounds, for this, which, again, I think
is an urgently needed conversation, and I look forward to
hearing from our witnesses.
Senator Rounds. Thank you, Senator Booker, and I look
forward to working with you on this Committee, as well as the
Traditionally, in this Subcommittee, we would allow the
Chairman and the Ranking Member of the full Committee to also
have an opportunity to visit. Senator Barrasso just had to
leave to go to a business meeting, so he has indicated that he
would pass on his opportunity at this point. However, we are
privileged in that Ranking Member Carper is here, and at this
time I would like to ask Senator Carper if he would like to
make an opening statement.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Yes, I would. Thank you.
I appreciate very much the Chairman and the Ranking Member
hosting this hearing today. Thank Senator Fischer and others
for trying to lead us to a principled compromise, where we are
mindful of the need to protect public health, and at the same
time, to make sure that an industry which provides a lot of
jobs in this country--the ag industry--is able to be successful
and compete in the world.
Delaware is not a big State. I go home almost every night;
went home last night. We have three counties; the largest one
is in southern Delaware. Sussex County is the third largest
county in America. It is a little State, but the third largest
county in America.
We raise more chickens there, I am told, than any county in
America. Last time I checked, we raise more soybean than any
county in America. And I think the last time I checked we raise
more lima beans than any county in America, and I think we have
more five-star beaches than any county in America. So it is a
little State, but that is quite a county, isn't it? But we have
a lot of people who live there, and we want to make sure they
have a good environment in which to live; clean air, clean
We raise a lot of chickens on Delmarva, as Bill knows,
Delaware, Maryland, and the Virginia eastern shore, and for
years the farmers have taken chicken litter, chicken manure,
and mixed with sawdust, which is usually on the floor of the
chicken house; they mix it together and use it for fertilizer
and spread it on farm fields all over Delmarva and certainly
all over Sussex County in order to support raising soybeans,
corn, and other crops.
For years and years we were not very good environmental
stewards with the way we spread our chicken litter on our farm
fields. Didn't do a good job. As Bill knows, a lot of our farm
fields drain into creeks, drain into ditches, and eventually
into rivers, Nanticoke River, which flows into the Chesapeake
Bay. The Chesapeake Bay badly degraded, and we were one of the
reasons why it was badly degraded.
About 20 years ago, my last term as Governor, we put
together a farmer led initiative, nutrient management
commission, farmer led, includes some environmentalists,
includes the Department of Natural Resources and Environmental
Control, and we figured out a way to make sure that folks who
were spreading chicken litter on farm fields, which is high in
phosphorus, high in nitrogen. It is good fertilizer, relatively
inexpensive; we have to figure out what to do with it.
For those who, starting in the late 1990s, were going to be
spread chicken litter, they had to get a plan. They had to
submit a plan, say this is my plan, here is how I am going to
do it; have to have their soil tested to make sure it was
appropriate for receiving chicken litter, how much could go
onto the farm fields that would be safe for public health, and
to make sure that the farmers were adhering to their nutrient
management plan. We have been doing that for over 15 years.
Senator Van Hollen and Senator Cardin will tell you that
the quality of the water in the Chesapeake Bay has
significantly improved. Is it perfect? No, it is not. Delaware
was not a good neighbor for many, many years. I think we are a
much better neighbor today. They have a neighbor up to the
north, Pennsylvania; so do we. I don't think Pennsylvania has
sort of--we have to get them online.
But Delaware is a much better neighbor today. Can we do
better? Sure, we can always do better. Everything I do,
everything all of us do, we can do better. But I just want to
give you that for a little bit of context.
I have known Bill Satterfield forever. When I was elected
State Treasurer at the age of 29, every time you get on the
radio, if you are State Treasurer, it is not a hot commodity
like being a Senator. Every now and then I would get invited to
Radio Station WDOV--was that the name of the station?--WKEN in
Dover, Delaware. One of the folks who was on, one of the people
who did this talk radio, and one of the folks who did some of
the program and some of the interviews was Bill Satterfield.
He was nice enough to invite me to be on his show from time
to time, and on my way, driving on Route 8 to WKEN to do the
interview, I would drive--was it a Tastee-Freez?--I would drive
by Tastee-Freez on my way. I love chocolate milkshakes. I would
stop and get a chocolate milkshake. He was a co-owner. Who was
the other guy who was a co-owner with you? Yes, Rick.
And I would get a chocolate milkshake and then I would go
do the interview, and he would say to me at the beginning of
the interview, he would say, ``How are you doing today?'' And I
would say, ``Great. There was a Tastee-Freez on the way out
here on Route 8, and I love to stop there and get a chocolate
milkshake; in fact, I am having one right now. And you guys
make the best--I don't know who owns that place, but they make
the best chocolate milkshake.''
But anyway, from those humble beginnings, me, a State
Treasurer, and Bill as a radio interview personality, he went
on to join the Delmarva poultry industry in 1986, was named
their Executive Director in 1993, and he works to advance the
interests of our Delmarva poultry farmers. I said earlier ag is
a big deal in our State, and especially in the southern part of
I have said a million times before to my colleagues that it
is possible to have clean air, it is possible to have clean
water, cleaner air, cleaner water, and good public health, and
still have jobs, and there is always a balance, and sometimes
it is not easy to find that balance, but we think we are
working toward that and still will continue to do this.
But I said in our full Committee here on ag issues last
month, I acknowledged that sometimes environmental requirements
can be complex. They can be confusing to those who farm,
especially when those rules apply suddenly to them, and that is
what happened in April 2017 when the D.C. Circuit Court of
appeals invalidated an EPA rule from 2008.
That rule had exempted all farms in the nation, as we have
heard today, from reporting requirements for hazardous air
emissions from animal waste under CERCLA. That rule also
exempted small and medium sized farms from reporting under the
Emergency Planning and Community Right-to-Know Act, which we
know as EPCRA, but left in place, reporting requirements for
But with the FARM Act, the legislation that we are holding
this hearing on today, we are hoping to provide certainty to
farmers by legislatively exempting all farms under CERCLA, as
was done by EPA in its 2008 rule.
One thing I worked hard on this legislation with Senators
Fischer and Barrasso and others, as we were developing this
legislation, is to make sure the FARM Act makes no change to
EPCRA reporting, no change. And I think Senator Booker has
mentioned this already.
I just want to thank both Senator Barrasso, I want to thank
Senator Fischer, others, other staffs and others for working
with my staff and me and agreeing not to amend EPCRA in this
bill. This is an issue that was critical for many members on
our Democratic side. We have repeatedly heard concerns from
State and local officials, public health experts and other
members of our communities who want information about what is
in their air, and this bill seeks to strike a careful balance.
As a result, it enjoys broad, bipartisan support. My hope is
that that broad support can be translated into prompt
Again, my thanks to all who played a role in crafting this
compromise which is before us today.
Senator Booker and I show up most Thursdays, we will do it
later today, at a Bible study group led by our Chaplain, Barry
Black, for about a half an hour. It is for those seven or eight
of us who need the most help, right?
One of the things that Chaplain Black, who is retired Navy
Admiral, former Chief of Chaplains for the Navy and Marine
Corps, he always reminds us every week of the Golden Rule:
treat other people the way we want to be treated, and love thy
neighbor as thyself. And this is an effort, I think, a good
faith effort to try to make sure that we are true to that
We are not there yet, but it is striving toward perfection.
Keep striving, keep striving, and hopefully some day we will
get there. Maybe we will even get to Heaven. Who knows?
Thank you so much.
Senator Rounds. Thank you, Senator Carper. I think Senator
Booker was right as he suggested to me that not only will they
probably clip your message here on behalf of your local Chamber
of Commerce, but probably the dairy and milk industries will as
well. Chocolate malts sound very good, actually.
I would also make note that Senator Carper has suggested
that this is a bipartisan effort. A lot of that has to do with
the leadership of Senator Fischer and her work here to gather
both Republicans and Democrats as part of this. She currently
has 12 Democrats and 21 Republicans on this as cosponsors, and
that says a lot about the leadership that she has provided.
I would like to give Senator Fischer the opportunity to
visit a little bit about this legislation before we move
directly to our witnesses.
Senator Booker. And I would like to note for the record it
was her birthday last week. She is now, I think, 38.
Senator Fischer. That would be correct.
OPENING STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM THE STATE OF NEBRASKA
Senator Fischer. Thank you, Chairman Rounds and Ranking
Member Booker, for convening today's legislative hearing on
important bipartisan legislation that would ensure common sense
policies prevail for our farmers, our ranchers, and our
Mr. Chairman, I thank you for your support, and to my other
EPW colleagues, Chairman Barrasso, Ranking Member Carper,
Senators Inhofe, Ernst, Moran, Duckworth, Wicker, and Boozman,
for supporting this important legislation. I would also like to
thank the witness panel for their willingness to share their
time and experience with our Committee this morning.
Since my first day in Congress I have worked with my Senate
colleagues to promote policies that enable our ag producers to
prosper, while also safeguarding our environment. The bill
before us today, the Fair Agricultural Reporting Method, or the
FARM Act, would provide greater certainty for ag producers. It
will protect farmers and ranchers from burdensome reporting
requirements for animal waste emissions under the Superfund
law, also known as CERCLA.
When CERCLA was enacted, Congress never intended the law to
affect normal production agricultural practices. Instead, the
law is meant to address dangerous industrial pollution,
chemical plant explosions, and the release of hazardous
materials into the environment.
In an effort to clarify that animal manure is not a
hazardous chemical emission, the EPA published a final rule in
2008 that exempted most livestock operations from animal waste
emission reporting requirements under CERCLA. But last year the
U.S. Court of Appeals for the D.C. Circuit vacated the 2008
rule, noting that the EPA does not have the authority to grant
the reporting requirement exemption.
The Court's decision created confusion, and it created that
for both the EPA and ag producers, and that sent a clear
message that a legislative fix from Congress is needed to
clarify these reporting requirements. My legislation does
The FARM Act codifies the original intent from the EPA's
2008 rule by mirroring the intent of the exemption. It does so
by providing an exemption for air emissions from animal waste
from CERCLA reporting requirements. Most importantly, it
provides ag producers with greater certainty by reinstating the
status quo that producers have been operating under since EPA's
final 2008 rule.
It is important to also note that while EPA administers
CERCLA, producers must notify the National Response Center,
which is housed under the U.S. Coast Guard, of their animal
waste emission releases. The NRC reported that their daily
calls jumped from an average to 100 to 150 to well over 1,000 a
day, creating at times a 2 hour wait delay. Due to the extreme
influx of reports, the director of the NRC wrote to me that
without the CERCLA exemption, the increased reporting would
absolutely hinder the Coast Guard's ability to respond to real
emergencies around this country.
We all want clean air, and we want clean water. Our farmers
and ranchers understand this better than most, and it is
important for us to provide them the necessary tools that they
need to continue to feed our nation and to feed the world.
America's farm and ranch families are currently experiencing a
tough economy. We have depressed markets, and we have tight
margins. They shouldn't also have to worry about reporting
their animal waste emissions.
This is an issue where we can provide a solution. It is one
of those rare moments where everyone involved, our
stakeholders, the EPA, and the National Response Center, all
want a fix, and I am grateful for the bipartisan interest in
seizing this opportunity.
I am looking forward to today's discussion, and I thank my
33 colleagues on both sides of the aisle for joining me in this
Thank you, Mr. Chairman.
Senator Rounds. Thank you, Senator Fischer, and once again,
thanks for the leadership on this. This is very, very
important. Any time you bring together both Republicans and
Democrats in these numbers, that says a lot about the work that
you put into it, so thank you.
At this time, Senator Barrasso, who is the Chairman of our
full Committee, has again rejoined the Subcommittee.
Senator Barrasso, would you care to make any opening
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Well, thank you very much, Mr. Chairman.
I want to thank you, as well as Ranking Member Booker, for
convening this hearing on S. 2421, the Fair Agricultural
Reporting Method Act, the FARM Act. It is important bipartisan
legislation that is going to help bring clarity to ranchers and
to farmers in Wyoming and all across the country. I cosponsored
the bill, strongly support it, and compliment Senator Fischer
for its introduction.
The Comprehensive Environmental Response, Compensation, and
Liability Act, CERCLA, was enacted by Congress to give EPA the
authority, the authority to respond to hazardous industrial
pollution that threatens the environment and public health. It
is an important and necessary law, provides tools to clean up
polluted sites, and to hold responsible parties accountable.
But when applied to the everyday activities of ranches and
farms, it really makes very little sense. That is why, in 2008,
the EPA finalized a rule to clarify that farming ranches are
exempted from air emission reporting requirements under CERCLA.
Even the Obama administration agreed that farmers and ranchers
should be relieved of some of this burdensome regulation.
In April 2017 the D.C. Circuit Court nullified the Obama
administration rule, mandating new onerous reporting
requirements for up to 100,000 farms and ranches.
Now, Mr. Chairman, I was home in Wyoming the last 2
weekends, 1 weekend in Riverton, Wyoming, the Freemont County
Cattlemen's Association; last weekend in Big Piney and
Marbleton, Wyoming, at the Green River Valley Cattlemen's
Association. Look, I continue to hear how out of touch the
environmental regulations have become, and this is a textbook
example. The people who labor year round to feed, to clothe, to
house our nation should not be burdened with the time and money
it takes to estimate and to record and to file emissions
reports that even the EPA has said it does not need or want.
That is why enacting the FARM Act is critical. It is a
common sense bill. It protects ranchers and farmers in Wyoming
and around the nation from punishing and unnecessary Federal
Government regulations. It eliminates regulatory uncertainty by
putting into law the CERCLA animal air emissions exemption that
producers have relied on since the EPA's 2008 rule. I believe
it is an important bill.
I would like to again thank Chairman Rounds, Ranking Member
Booker for holding this hearing, and especially like to thank
Senator Fischer for bringing it to us, bringing it to the
Senate as we move forward on this bill.
Thank you, Mr. Chairman.
Senator Rounds. Thank you, Chairman Barrasso.
Our first witness for today's hearing is Mr. Todd
Mortenson, who is the Owner-Operator of Mortenson Ranch in
South Dakota. On a personal note, Todd lost his father,
Clarence, just this last week, who was a good friend of mine, a
real gentleman, and truly, with regard to modern sustainable ag
practices, probably one of the fathers of making it a reality
in South Dakota.
First of all, my condolences to you and to your family on
the loss of your father, but also in South Dakota the loss of a
real gentleman and a true part of the pride that we have in our
State. So, just on a personal note, that loss is felt.
Todd is the owner and operator of the Mortenson Ranch in
Stanley County, South Dakota. His cow calf operation sits along
the beautiful Cheyenne River, and Todd focuses on conservation
and stewardship of his land. He has restored more than 90
percent of his 19,000 acre ranch back to native grasses,
shrubs, and trees, and for this Todd was recognized by the Sand
County Foundation as the Leopold Conservation Award winner in
The Mortenson Ranch was also the subject of a multi-year
study conducted by the South Dakota State University, and in my
opinion, is a gold standard for striking a perfect balance
between ranching, economics, and environmental conservation.
I first went out to Todd's ranch way back in the 1990s, and
I saw what they were doing for water improvement on livestock
improvement, pasture improvement, bringing broadleaf back in
and so forth, and it can be pointed to as a true success story
for sustainable ag.
Senator Carper is still here. I would like to yield to
Senator Carper to introduce our second witness at this time.
Senator Carper. I think I have done about as much harm to
Bill Satterfield's reputation as anybody can. But if you didn't
get the drift of my earlier statements when I talked about him,
a little bit about his background.
Agriculture is hugely important in all of our States, but
particularly in southern Delaware, and a big part of that is
poultry. We always face, in every one of our States, the
question can we have cleaner air, cleaner water, and still have
jobs. Can we have better public health and still have jobs? And
I always say it is a false choice to say you have to choose one
or the other. We can have both. And part of what we want to do
is make sure that we do a better job of adhering to that
thought, and I think Bill understands that, and he has helped
to provide leadership for a big consortium of folks who raise
chickens, process chickens, export chickens all over the world,
and we are grateful for his service in that regard, and I am
just grateful for his friendship over all these years.
Senator Booker. Mr. Chairman, I just want to note for the
record that Mr. Satterfield did not bring chocolate milkshakes
Senator Rounds. Duly noted.
Senator Van Hollen. Mr. Chairman, if I just could, I
believe, if I am not wrong, that Mr. Satterfield actually, if
you still live in Salisbury, you are a Marylander, so we are
very proud to have you as a Marylander, and thank you for being
Senator Carper. But he still votes in Delaware. No, I am
Senator Carper. For the record, he does not.
Senator Rounds. We won't get into that today.
Mr. Satterfield, welcome.
Senator Carper. Thank you, Bill.
Senator Rounds. Our third witness for today's hearing is
Mr. Mark Kuhn, Floyd County Supervisor, Floyd County, Iowa, and
we welcome you, as well, to this very special panel. Thank you,
sir, for being here.
Now we will turn to our first witness, Mr. Todd Mortenson,
for 5 minutes.
Mr. Mortenson, you may begin.
STATEMENT OF TODD MORTENSON, MORTENSON RANCH, MEMBER, NATIONAL
CATTLEMEN'S BEEF ASSOCIATION
Mr. Mortenson. Good morning. My name is Todd Mortenson. My
wife, Deb, and I, along with our sons, Quinn and Jack, live on
a ranch in Stanley County, South Dakota, along the Cheyenne
River. I am a member of the South Dakota Cattlemen's
Association and the National Cattlemen's Beef Association, and
today I am representing cattle producers from across the
Thank you, Chairman Rounds and Ranking Member Booker, for
allowing me to testify on CERCLA reporting for agriculture and
the importance of the FARM Act.
Farmers and ranchers truly are America's original
environmentalists. We care more than anyone about the land that
we manage because the environmental quality of our operations
directly impacts not only the health of our livestock, but the
water we drink and the air we breathe. I work hard to implement
management practices that improve the environmental
sustainability of my ranch so that someday I can pass it on to
my sons. For example, we move cattle to the uplands during the
summer months, allowing increased native plant growth and
decreased sediment flow through the ranch creeks.
While I fully support best management practices that
improve environmental quality, I cannot support needless
requirements that burden the agricultural community while
providing no benefit. A prime example of this is the burdensome
reporting requirement under CERCLA which requires farmers and
ranchers to report manure odors to multiple Federal agencies
for emergency response coordination. Let me say that again,
because the absurd bears repeating. CERCLA reporting requires
farmers and ranchers to report manure odors to the Federal
Government so that the Federal Government can coordinate an
emergency response to manure odors.
On my pasture based cow calf operation, I manage 1,295 cows
on 19,000 acres. Because my cattle are so spread out, the
concentration of emissions is extremely low. But CERCLA does
not consider concentration, only release. It makes no
difference whether my cattle are spread over 10 acres or 10,000
acres; if my cattle emit over 100 pounds of ammonia or hydrogen
sulfide per day, I am required to report their emissions to the
Coast Guard and the EPA.
It is clear that Congress never intended for CERCLA to
govern agricultural manure odors. The EPA understands this, and
in 2008 exempted agricultural operations from CERCLA reporting
requirements. While the exemption was put in place by the
George W. Bush administration, it was defended in court by the
Obama administration. In defending the exemption, the Obama EPA
argued that Congress did not include an exemption for manure
emissions because they never dreamed that these low level
emissions would fall into the possible realm of regulation.
However, in April 2017 environmental groups won their
lawsuit, and the D.C. Circuit Court eliminated these important
exemptions. When the mandate issues in May, nearly 200,000
farmers and ranchers will be required to report low level
manure odors to the Federal Government.
Reporting is no simple task; it is a three step process
that requires, at minimum, 1 year to complete. The first step
is an initial call to the Coast Guard, the agency tasked with
coordinating emergency response for the nation's hazardous
emergencies, such as oil spills and chemical explosions.
The Coast Guard is on record stating that these reports
don't help them at all. In fact, they only hurt their ability
to respond to environmental and public health emergencies. For
quotes from the Coast Guard's declaration to the D.C. Court,
you can see my written testimony. In summary, the Coast Guard
indicated that early calls in November from some livestock
operations increased wait times to report emergency releases by
up to 2 hours.
The initial call is followed by two written reports to the
EPA sent over the span of 1 year. These reports require
detailed information regarding my cattle's emissions,
information that I simply do not have. Research in this area is
limited, to say the least. Only two land grant universities
have done research to establish an emissions calculator, and as
a pasture based producer, there is no available science to meet
the statutory burden.
It should also be noted that this reporting requirement is
not a one and done obligation; any time I decide to increase
the size of my herd, I am required to start the process all
To clarify these exemptions, Congress needs to change the
law to reflect its intent that livestock producers are exempt
from CERCLA reporting requirements. The FARM Act, introduced
just a couple of weeks ago, provides the relief that livestock
owners and first responders need under CERCLA, and has the same
bipartisan support exhibited under the Bush and Obama
CERCLA is one of our most important environmental statutes,
providing the tools we need to effectively clean up releases
that harm both the environment and public health.
Unfortunately, we all know that environmental agencies are
given low priority at both Federal and State level. The FARM
Act will ensure that precious time and monetary resources are
not siphoned from important cleanup efforts to address a
paperwork requirement with no environmental or public health
As May 1st quickly approaches, only Congress can ensure
that the agriculture community is protected from this reporting
burden, the reliability of our emergency response coordination
is maintained, and the integrity of the Superfund law is not
Thank you for your time, and thank you for your support of
the FARM Act.
[The prepared statement of Mr. Mortenson follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you, Mr. Mortenson.
We will now turn to our second witness, Mr. Bill
Mr. Satterfield, you may begin.
STATEMENT OF BILL SATTERFIELD, EXECUTIVE DIRECTOR, DELMARVA
POULTRY INDUSTRY, INC.
Mr. Satterfield. Good morning, Chairman Rounds, Ranking
Member Booker, Mr. Van Hollen, and Senator Carper. Thank you
for the trip down memory lane. What I do not recall is whether
I charged you for that milkshake.
Senator Carper. Paid in full.
Mr. Satterfield. I am Bill Satterfield. I am the Executive
Director of Delmarva Poultry Industry Incorporated, which is
the trade association for the meat chicken industry in
Delaware, the eastern shore of Maryland, and the eastern shore
of Virginia. On behalf of America's chicken, turkey, and egg
farmers, I thank the leadership of this Committee and our
Delmarva Peninsula Senators for introducing the FARM Act. As
you have heard, this will restore the CERCLA reporting
requirement exemption to the limited purpose, which was never
intended to be low level air emissions from animal manure
The FARM Act is needed because EPA's original farm
reporting exemption was challenged in court, and in its
decision the court adopted a strict reading of the CERCLA
statute and concluded that Congress did not authorize EPA to
create the exemptions. Therefore, failure to amend the CERCLA
statute now to remove the reporting requirement for farm air
emissions reporting will subject, as we have heard, 200,000
farmers or more to these reporting requirements. Congress needs
to clarify its intent immediately. The FARM Act will do this.
While CERCLA is a valuable tool to protect the public and
the environment from accidental releases of hazardous
substances, it is hard to believe it was ever the intent of
Congress to extend the reporting requirements to farms that
incidentally release ammonia that is generated as manure
decomposes. This guided our 2005 petition requesting an
exemption from CERCLA reporting.
After considering the request, EPA developed a rule that
provided a narrow exemption for farms for reporting low level
continuous releases of ammonia and hydrogen sulfide. EPA's
exemption was based on Congress's intended purpose of notifying
the National Response Center only when a truly hazardous
substance is released. The NRC and the Coast Guard have
indicated on several occasions that they did not intend to do
anything with the information.
While it is true that ammonia, which in significant
concentrations and volumes is a substance reportable under
CERCLA, it is a by-product of manure decomposition. The
concentrations on poultry farms are at very low levels, and
they dissipate rapidly into the air.
University of Georgia researchers, in 2009, found that
ammonia concentrations were lower as distance from the poultry
houses increased. At no time during that study did the measured
ammonia levels meet or exceed OSHA's ammonia odor detection
threshold levels, and this underscores EPA's rationale for
providing the exemption in 2008. Similarly, we cannot imagine
that local emergency response agencies, if they even get this
information, would do anything other than scratch their head
and say, what are we supposed to do now?
The EPA's anticipation on reporting concerns was entirely
correct. In November of last year poultry farmers from the
Delmarva Peninsula and other parts of the country attempted to
initiate the then required CERCLA reporting process. One such
grower is Sharon, who operates a poultry farm near Marydel,
Maryland, just across the border from Delaware.
Upon calling the NRC to provide an initial notification of
a continuous release, a recording informed her that NRC would
not be accepting telephone notifications. And as feared, as
Senator Fischer was saying, the system was overloaded. The
reporting to Sharon told her to submit the initial response in
Well, you need to understand that many farmers do not use
e-mail, do not have e-mail, so requiring e-mail notification is
not practical and could result in these farmers--wishing to be
compliant with the law--being in violation. Sharon is 73 years
old; never has owned a computer, never used e-mail, so that was
not an option for her.
That is just one example of the numerous breakdowns in the
reporting system starting last November. This indicates that
the NRC did not recognize these reports as emergencies that
require an immediate response or action.
Requiring the emissions monitoring is difficult.
Calculating air emission levels is very complicated, and it is
hard to do, and there needs to be a whole lot more research on
how do you do it, because chicken houses differ, the age of the
birds have a factor, the age of the litter material, the
weather, the treatment of the birds inside the house all play
So, simply put, CERCLA was never intended to force farmers
to report low level emissions from normal, everyday
On behalf of Delmarva Poultry Industry Incorporated and the
entire poultry industry nationwide, we thank the Committee and
its members for introducing this Act. This bill will put
enormous regulatory relief to countless farmers across America
without sacrificing human health and will give them more time
to focus on their vocation, which is producing food for America
and the world.
I appreciate the opportunity to testify and would be happy
to answer any questions at any time. Thank you.
[The prepared statement of Mr. Satterfield follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you, Mr. Satterfield.
We will now turn to our third witness, Mr. Kuhn.
Mr. Kuhn, you may begin.
STATEMENT OF MARK KUHN, FLOYD COUNTY SUPERVISOR, FLOYD COUNTY,
Mr. Kuhn. Thank you, Chairman Rounds and Ranking Member
Booker, for inviting me to address the Subcommittee, and
welcome from Iowa, hello from Iowa, Senator Ernst, the Hawkeye
I am a farmer and current member of the Board of
Supervisors from Floyd County, Iowa. I served six terms as a
State representative and was one of 12 legislators who drafted
the last major change to Iowa's confined animal feeding law in
2002. I know how essential it is to monitor air emissions from
CAFOs and why results should be shared with neighbors,
communities, and emergency responders.
According to Iowa State University, Iowa's hogs, cattle,
and poultry produce a combined total of 50 million tons of
manure each year. Amid growing concerns about public health and
the environment in 2001 Iowa Governor Tom Vilsack asked the
College of Agriculture at Iowa State University and the College
of Public Health at the University of Iowa to provide guidance
regarding the impact of air quality surrounding CAFOs on Iowans
and recommended methods for reducing and/or minimizing
Based on an analysis of peer reviewed, duplicated,
legitimate, and published scientific research, the consensus of
the entire study group was that hydrogen sulfide and ammonia
should be considered for regulatory action. Both of these gases
have been measured in the general vicinity of livestock
operations at concentrations of potential health concern for
rural residents under prolonged exposure.
In April 2002 Governor Vilsack signed new livestock
regulations into law giving the Iowa Department of Natural
Resources authority to develop air quality rules and monitor
CAFOs. During the next 2 years three attempts by the DNR to
establish regulations for hydrogen sulfide and ammonia were
nullified after strong opposition from the CAFO industry.
In March 2004 the industry introduced through friendly
legislators a bill to set air emission standards. The bill was
passed by the legislators, but vetoed by Governor Vilsack. In
his veto message, Vilsack stated the bill represented a
significant step backward because it would not adequately
protect the health of Iowans, and it would set a standard so
lenient it would undermine the credibility of the CAFO
Nothing has changed in Iowa since the joint university
report 16 years ago, with two key exceptions: Iowa has more
than four times as many CAFOs as they did then, and the pork
industry is about to go hog wild again. An unprecedented
increase in packing plant capacity in Iowa, fueled by the
demand for exported pork to China, will likely result in an
onslaught of new CAFOs.
It is clear to me that the CAFO industry is opposed to any
air emission regulations. It intends to continue business as
usual as long as State elected officials in Iowa allow it. This
isn't a rural versus urban issue; it affects all Iowans. It
pits neighbor versus neighbor all too often. It pits farmer
Please be assured these reporting requirements do not
affect small family farms. The CAFO industry is industrialized
factory farm agriculture. It is vertically integrated from top
to bottom; giant corporations get the profits from the hogs
they own and process at their packing plants, local farmers
build the barns and get the manure, while neighbors get the
A preponderance of evidence shows that toxic air emissions
from CAFOs can adversely affect immediate neighbors and nearby
communities. Those with allergies, asthmatics--especially
children, in which asthma is more common--and adults with COPD
are at particular risk.
In Iowa it takes a good neighbor to be a good neighbor. I
will close with the story of one good neighbor family in Floyd
County. Jeff and Gail Schwartzkopf bought a house in the
country near the small town of Rudd 4 years ago. Thirty days
after they moved into their new home they learned a large CAFO
was going up 1,987 feet south of them. Once it was built and
populated with thousands of squealing pigs, their lives changed
According to Gail, ``We tried to make the best of it, but
nothing worked. We stopped enjoying the outdoors. We hate the
stench, the biting flies, our burning eyes, scratchy throat,
fatigue, digestive issues, and insomnia because we worry about
our health. We can't open our windows or hang our clothes on
the line to dry. There are only 5 or 6 days out of a month when
it doesn't smell like rotten eggs.''
The Schwartzkopf family is surrounded by three large CAFOs.
They should be protected from toxic air emissions that impact
their health and diminish their quality of life, but Iowa
lawmakers refuse to act. So now it is up to you to protect
their access to air emission information under both CERCLA and
This is a picture of Gail and her family, and the view from
their front yard. The last thing Gail told me before I left for
Washington, DC, was ``I wish this picture was scratch and sniff
so all those Senators could partake of the toxic emissions and
polluted air if only for a little while.''
Thank you for listening.
[The prepared statement of Mr. Kuhn follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. Thank you, Mr. Kuhn, for your testimony
At this time, each of the Senators will have 5 minutes to
ask questions of our witnesses. I will begin.
Before I actually start with questions, I would like to ask
unanimous consent to include two letters of support for this
legislation and ask they be entered into the record of this
meeting, a letter from the American Farm Bureau and a letter
from the Wyoming Stock Growers Association.
Hearing none, we will enter it.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Rounds. With that--first of all, Mr. Mortenson, if
I could just begin with you. I am familiar with where your
ranch is, and I know it is on the Cheyenne River, and it
overlooks the Oahe Dam and Reservoir. It is one of the most
beautiful lakes in all of America, in my opinion; it is 180
miles long, 5, 6 miles wide in some areas, and you can go out
and look down 10 foot and see the bottom. It is a couple
hundred feet deep in a lot of areas, but it is absolutely
beautiful, and the water is clear.
America's ranchers, just as you, are on the front line of
the nation's conservation efforts. Ranchers like yourself are
truly our best stewards of the land. Can you talk about what
you do to protect the environment and South Dakota's natural
resources and maybe also, on a brief basis, why you do it?
Mr. Mortenson. I will start with the last question, why you
do it. It is the right thing to do because we all have to
breathe the same air and drink the water. Like you said, we are
on Lake Oahe, we are on the Cheyenne River arm of Lake Oahe, so
what runs off my ranch basically goes all the way to New
Orleans, so I am very cognizant of what that is and make sure
that I am doing the best that I can to stop any pollution.
Now, as Senator Rounds indicated earlier, SDSU, the college
in Brookings, has done research on the ranch, quite
extensively, and one of the research projects they had had to
do with water quality, and what they found out is that the
water running off our ranch is cleaner than the water that runs
onto it from the neighboring farms and ranches. So we are very
proud of that fact, that we are doing the right thing
environmentally to clean up not only the water, but the air.
We practice what we call holistic management, and that
means we take into account everything on the ranch, from the
people to the land to the wildlife, and all of those things are
interconnected, and if any of them aren't healthy, the whole
system will fail. So we make sure that everything has a chance
to thrive on the ranch, regardless of whether it is livestock
or the trees, the shrubs, anything like that. We are very
conscientious about the environment we live in.
Senator Rounds. You are a volunteer fireman, as well. Can
you comment a little bit about what it would do with regard to
first responders if we actually had to try to get the Corps of
Engineers to respond? I am not even sure where the nearest
Corps of Engineers office is and how many hundreds of miles
away it is from our part of the world, but can you comment a
little bit about what the impact would be if your local
emergency responders had to respond to the call each time one
of these reports was to be filed?
Mr. Mortenson. Certainly. Not only am I a volunteer
fireman, but I am also a first responder, EMS first responder,
and it adds another layer, basically, of paperwork that you
would have to do and potentially could slow down your response
time. I am going to a Superfund site out in the middle of
Stanley County somewhere; now I have to worry about, is it for
real, or is it a chemical that I am worried about, or is it a
cow pie that I might step in and slip and fall.
Those are very real concerns because, as a first responder,
your first duty is to make sure that the scene is safe. So you
can't enter a scene until you have determined that, and this
will just slow down that response time.
Senator Rounds. Sometimes I think, when we get into these
meetings here in DC, we start talking about manure, and we
start talking about it as this thing which has little value.
Can you talk about the value of manure as we see it, in terms
of the ag operations and the value that we have with regard to
Mr. Mortenson. Absolutely. In my operation, it is a pasture
based operation, obviously, and there is a little bug that we
monitor, it is called the dung beetle. And that dung beetle,
when that pat hits the ground, those things come from all over
the place. They have little antenna that they sense the smell
and they zoom in on those cow pats. They make little balls, lay
their eggs in these little manure balls, and then roll them
into a hole. They roll them away from the cow pat, dig a hole,
and down into it it goes.
When the eggs hatch, the larvae feed on the manure, and
then when they are big enough, they come out. What does that
do? Several things: it fertilizes the ground, No. 1, and No. 2,
it aerates the ground, it opens the ground up so the water
percolates into the ground a lot easier. So the cow pat is very
important to the overall health of our range land.
Senator Rounds. Do you know any producers out there right
now that actually don't value manure in their operations?
Mr. Mortenson. None. I mean, with the cost of commercial
fertilizer, this is, by far and away, the cheapest and the best
product that is out there. And like I say, for me, Mother
Nature is doing the work; she is the one that is putting the
fertilizer into the ground.
Senator Rounds. Mr. Mortenson, thank you.
Senator Booker. Mr. Chairman, if it is OK with you, I am
going to defer to my Ranking Member and my colleague. Before I
do, I just want to ask unanimous consent to submit into the
record materials from the Congressional Research Service
analyzing the effects of S. 2421, the FARM Act.
Senator Rounds. Without objection.
Senator Booker. Thank you.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. I want to thank my colleague for yielding
and giving me this opportunity to ask some questions so I can
get going to another important meeting.
Thank you all for being here, for your testimony.
I want to come back to something that Mr. Satterfield said,
talking about I think it was the University of Georgia that you
talked about, with the level of emissions with respect to the
poultry industry. Was that the University of Georgia?
Mr. Satterfield. University of Georgia, yes, sir.
Senator Carper. In about 30 seconds, just give us that real
quick synopsis of that study.
And then what I am going to ask is Mr. Kuhn to compare and
contrast what you presented to us today with what the
University of Georgia is reporting here. Please. Just real
Mr. Satterfield. The University of Georgia study was
looking at concentrations of ammonia outside of chicken houses,
parts per million versus mass or volume of emissions that come
out of the houses, so what is the air quality. And the study
found that the measurements were made further and further away
from the chicken houses, the ammonia detection levels kept
going down and down and down. At no time during that study did
the odor threshold levels exceed or meet OSHA's standards. And
even when there were ammonia levels detected, they were well
below EPA's standard.
So, you have to understand that as you move farther away,
you are not impacting the neighbors as much as some people
would have you believe. And it is important to understand that
inside the chicken house, if the ammonia is too high, those
birds are not going to live. Taking care of the animal, the
welfare of the animal is the No. 1 job of our growers, and
preventing ammonia creation is among their top priorities.
If the ammonia is over 25 parts per million, it is
hazardous for the birds, obviously not good for the farmers who
are in the houses working with the houses. So a lot of efforts
are made to keep the ammonia levels low. Some of that is done
through improvements in feed conversion, the conversion of the
feed ingredients into meat. We see each year a better feed
conversion, more of the nutrients being made into meat, which
means there is less opportunity for nitrogen to come out the
rear end of the chicken and eventually form ammonia.
There are products available that can be put down in the
chicken houses between flocks that will lower the pH, they are
acid products that lower the pH, which discourages the
formation of ammonia. That is an important part of the process.
The U.S. Department of Agriculture's Natural Resources
Conservation Service provides cost share money for that.
Keeping the houses dry is important because the ammonia
needs moisture to form. It is also good for bird health.
And then we have a program, as you know because you have
been out on some farms, where we have a full time employee
whose job is to work with chicken growers to put up vegetative
buffers around the chicken houses; trees, bushes, tall grasses.
So those things help keep the ammonia levels low, keep them
from dissipating to neighboring properties. As the Georgia
study found, even without all those things, there still is a
low level moving off the property.
Senator Carper. All right, thanks. Thanks very much.
What Mr. Satterfield is talking about reminds me of our
layered approach that we have for border security. It is not
just one thing, it is like a whole host of things to enable us
to keep bad people and bad products from coming across our
Mr. Kuhn, thank you very much for your testimony. It is
great to have you here as well. Just react very briefly, if you
will, I don't have much time, just real briefly, maybe about a
minute, to what Mr. Satterfield has said in the Georgia study.
Mr. Kuhn. Yes, certainly.
Senator Carper. Mr. Chairman, could I ask unanimous consent
the University of Georgia study that Mr. Satterfield has talked
about be made a part of the record, please?
Senator Rounds. Is there objection?
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Carper. Mr. Kuhn.
Mr. Kuhn. Yes. Thank you, Senator Carper. The results of
documented research in Iowa are different than what Mr.
Satterfield has described. Really, when the manure that is
contained in one of these buildings is agitated and applied to
the land, there is about 1 million----
Senator Carper. You are talking about poultry or one of the
Mr. Kuhn. This is the hog CAFO like this.
Senator Carper. Yes, I understand.
Mr. Kuhn. There is about 1 million gallons of liquid manure
underneath that building.
Senator Carper. One million gallons?
Mr. Kuhn. One million gallons. And numerous Iowa farmers
have lost their lives due to high level of toxic gases. They
really emit four different types of toxic gas: one, ammonia,
which is constantly there; carbon dioxide; hydrogen sulfide;
and methane. We have had numerous instances where farmers have
gone in to repair something in the bottom of the pit, they have
been asphyxiated; their son goes in to get them, they are
asphyxiated. This is very sad, but true.
It should come as no surprise that when thousands of
animals are confined in a building directly on top of all the
manure they produce, it is going to stink. The farmer will tell
you it is the smell of money, but the neighbor would say it
stinks to high heaven.
If the pharmaceutical plant in my hometown has a release of
a toxic chemical, they are required to notify local, State, and
national officials. Why should it be any different for
corporate factory farms? We want all of our corporate citizens
to be good stewards of our precious natural environment.
Senator Carper. Thank you very, very much.
And I want to again thank Senator Booker for letting me go
ahead of him. Thanks so much.
Senator Rounds. Thank you, sir.
Senator Fischer. Thank you, Mr. Chairman.
Mr. Satterfield, it is my understanding that there is a
regulatory framework already in place for producers to comply
with environmental rules and laws at both the State and the
Federal level. In your experience, would including the
additional reporting requirement under CERCLA result in any
Mr. Satterfield. Senator Fischer, I don't believe so. This
is a law dealing with emergency responses; it is not a law to
measure emissions, to quantify and aggregate emissions, to then
make policy decisions on whether additional regulations are
needed because those levels may meet a certain threshold. So I
don't see any environmental benefit or human health benefit, at
least from the chicken industry perspective, and that is all I
can speak from, from keeping the requirement that farmers have
With our chicken farms, the families live on the farm; they
are family owned farms. They live there, their children live
there, and it is not a corporate operation. It may be with hogs
in Iowa, I don't know, but for us, the families live there. And
if conditions were that bad, they would do other things to keep
those ammonia levels low and inside the houses.
Senator Fischer. Thank you.
Mr. Mortenson, you stated in your testimony that complying
with this reporting requirement is a multi-step process, and it
takes 1 year to comply. This is followed by additional
reporting any time you add cattle to your operation.
I am a cattle rancher from Nebraska, and I understand the
problems that ranchers are going to face, given that moving
cattle between pastures under a plan of grazing system that we
have could trigger additional reporting, among other problems,
with the compliance, so this just sounds like a bad deal, and
it is applying a law to agriculture that was never designed to
be applied to production agriculture.
When the court issues its mandate on May 1st, walk me
through the process that you are going to have to go through to
comply with this new law.
Mr. Mortenson. Thank you for the question, Senator Fischer.
The first step is reporting to the National Response Center
through the Coast Guard. And after that you have 30 days to
send your written report in to the EPA, your regional EPA
office, and for me, that would be in Denver. And then after a 1
year anniversary, you have 30 days again to re-report and note
any changes or anything.
Now, for me, there is no scientific basis out there to
gather that material. On a pasture based system like I run,
there is just nothing out there, so I am not going to be able
to provide any sort of accuracy to the information that I
As you said, I move the cattle around. I am in three
different counties. During the spring, after they calve and are
processed, the cows go to six different leases, so am I going
to have to report that again? And when the cows are calving, my
numbers go from one number, they just double, so what am I
going to do now, do I have to report that I have baby calves on
It is just a reporting nightmare, and the EPA, on their
page that you have to kind of go through, says it can take up
to 10 hours to do this report in May. I don't have 10 hours to
sit around and make guesstimates in May; it is just a busy time
of the year for farmers and ranchers.
Senator Fischer. Right. Do you believe that the FARM Act is
going to address that cumbersome process?
Mr. Mortenson. Yes, I do. I have great confidence in it.
Senator Fischer. You also discussed concerns about Federal
agencies having a database on farm and ranch locations, and
justifiably, you note the concerns of supplying the Federal
Government with personal information regarding the location of
these operations, which in many cases coincides with exactly
where we raise our families. Can you please explain why this is
concerning for producers who can gain access to this
information and what you believe the FARM Act can do to
alleviate some of those concerns?
Mr. Mortenson. I think it is very dangerous when you start
putting personal information out there for the public to
digest. In this case, a Superfund designation on my ranch I
think would attract a lot of attention; and not only on my
ranch, but all the other ranches around the country. You are
giving them your location, you are giving them the number of
cattle you run, so, to me, it puts me in a very dangerous
situation, I feel.
I think this FARM Act will address that; we won't have to
report, so, therefore, the numbers and where the cattle are
will remain, you know, as personal information.
Senator Fischer. Thank you, sir.
Senator Rounds. Senator Van Hollen.
Senator Van Hollen. Thank you, Mr. Chairman. Thank you and
the Ranking Member and my colleagues.
And to all the witnesses who are here, appreciate your
testimony. I joined with Senator Carper and a number of my
colleagues on a letter to Scott Pruitt at the EPA asking them
to ask the court to continue the stay while we try to figure
this out. I am trying to understand all the testimony and read
through a lot of material.
Mr. Mortenson, I think you make a very good point,
differentiating between the concentration of certain emissions,
like ammonia, versus the mass of emissions, because from a
human health perspective, of course, it is the concentration
that has the biggest impact on human health, and I think that
is a very important point.
Mr. Satterfield, welcome, and thank you for all you do on
behalf of the Eastern Shore's economy in Maryland. You drew the
distinction and said that CERCLA never anticipated that the
CERCLA reporting requirements would apply to ``low level
emissions'' from these ongoing operations. What is the
threshold for low level emissions, and what is beyond that?
Mr. Satterfield. I do not have a numeric threshold for low
level emissions versus higher level emissions. I don't have it
in front of me. We can do some research and find out. But my
point was that there is very little ammonia coming out of those
chicken houses because there is very little ammonia in the
chicken houses if the birds are being properly cared for and
the house is being properly managed.
Senator Van Hollen. Right. So I think those are all really
good points. You drew this distinction, and from a human health
perspective there is a distinction, right? So what I am trying
to figure out, if we say that there is no obligation to report
emissions under any circumstances, would that mean that even if
there were concentrated emissions, maybe they weren't doing the
job properly in one of the poultry houses, and there were
emissions that were concentrated to a point that it could have
an impact on human health to the neighbor? If we pass this,
what duty would remain with respect to farmers and reporting on
those kind of emissions?
Mr. Satterfield. Well, as I tried to point out, this is an
emergency response bill. Does the admission of emissions
trigger the need for emergency responders such as Mr. Mortenson
to come out and do something?
Senator Van Hollen. Right. And I agree. And probably 99
percent of the cases would never reach that concentrated level.
I think it is a really important point on the concentration.
You have a big, spread out farm, you may have a lot of
emissions, but they are not concentrated enough to have impact
on human health.
My question is, if you remove this requirement, in the
event there was something that was not a low level emission,
that was a high level concentrated emission, if we get rid of
this entirely, is there any duty to report?
And my understanding is, if you get rid of it entirely,
there is no duty to report something that we might all agree
could have an impact on human health. So I am just trying to
understand this provision, and you had used that term, and I
have seen it used before, low level emissions, so then the
question is if there was not an intent to apply this to low
level emissions, does that mean there was an intent to apply it
to high level, concentrated emissions.
Mr. Satterfield. I just cannot imagine from a chicken house
there would be an escape of ammonia that would endanger the
Senator Van Hollen. OK. And I defer to your expertise on
Mr. Kuhn, I don't know if, in your experience with some of
the other concentrated feed lots, non-poultry, pork, whatever,
in your experience, have there ever been emissions that would
trigger a requirement to protect human health?
Mr. Kuhn. Most certainly there have been.
Senator Van Hollen. Outside the boundary of the operation.
Because testimony on OSHA regulations is interesting testimony.
With respect to impact on human health outside the perimeter of
a farming operation.
Mr. Kuhn. In my earlier remarks I referenced attempts to
establish regulations and thresholds for hydrogen sulfide and
ammonia. The DNR did extensive testing over a period of years
to determine at the property line or at the separated distance,
that means at the place of the residence, were there direct,
verifiable emissions of odors that affect human health, and
they found there were.
In Iowa, 1,000 animal units is equal to 1,000 live cattle.
Unlike Mr. Mortenson, in Iowa they are built in confined
feeding operations, 1,000 cattle, and certainly in some cases
there are emissions that would threaten public health at the
Senator Van Hollen. Mr. Chairman, if I could just ask one
more, because the CRS report that I believe the Ranking Member
asked to be put in the record has not yet arrived at the
Committee, is that correct?
Senator Rounds. That would be correct.
Senator Van Hollen. OK. And I understand one of the
questions here is whether or not this legislation also
eliminates the requirements to report under Community Right-to-
Know. And I received a document, I believe from the Ranking
Member, who is a co-sponsor of the bill, that indicates that
under the legislation, under Senator Fischer's legislation,
that the reporting requirements under the Community Right-to-
Know Act would remain in place under this legislation with
respect to large farms and medium farms. It says those would
still be required. And maybe this is a question Senator Fischer
and I can talk about later.
But Mr. Satterfield, what is your understanding of the
impact of this legislation under the Community Right-to-Know
Mr. Satterfield. It is my understanding, Senator Van
Hollen, that the FARM Act does absolutely nothing to the
Community Right-to-Know Act.
Senator Van Hollen. OK.
Mr. Satterfield. It just deals with CERCLA.
Senator Van Hollen. And the last comment I will make, Mr.
Chairman, because I really am trying to figure this out with
you, is in the decision, in the court decision, the judge said,
in the final rule, that cutting back on CERCLA reporting
requirements had the automatic effect of cutting back on
Community Right-to-Know reporting and disclosure requirements.
Is there something I am missing here, that is it an automatic
flow through? In other words, it doesn't touch that statute,
but the Community Right-to-Know statute is directly linked with
the CERCLA statute in terms of triggering reporting
Mr. Satterfield. My understanding is that, under CERCLA,
the reports go to the National Response Center operated by the
Coast Guard, and then 30 days later a written report to the
regional EPA office. Under the EPCRA, the Community Right-to-
Know, it is my understanding that those reports go to the local
and State emergency responders, not necessarily to the Federal
people. So there are two different reporting systems, two
Senator Van Hollen. And they are totally independent, so
this legislation, while it may impact CERCLA requirements,
would not impact the Community Right-to-Know requirement?
Mr. Satterfield. That is my understanding, sir.
Senator Van Hollen. Thank you.
Thank you, Mr. Chairman.
Senator Rounds. All right.
Senator Boozman. Thank you, Mr. Chairman, and thank you all
very much for being here.
Mr. Mortenson, something that is problematic about the new
reporting requirement is that it likely affects over 200,000
agriculture producers across the country. Traditionally, as we
have talked about, EPA regulates the large concentrated animal
feeding operations, but the court decision goes way beyond
that. We are talking about feed lots, cow calf producers,
stockers, poultry, et cetera, et cetera. There doesn't seem to
be a limit on who is impacted by the new requirements.
Tell me what your buddies are thinking, in the sense of can
they comply with this? What is their concern? You know, again,
the solution to these problems need to come from the ground up,
rather than a judge or somebody that has never been on a farm
making some very, very important decisions. Tell me about your
Mr. Mortenson. Thank you, Senator Boozman, for the
question. For the most part, the people that I have talked to,
my neighbors, don't have any idea that this is even coming, so
if nothing is done by Congress, on the first of May a big
surprise is coming to them, and they are not going to be happy,
to say the least, to be labeled as polluters, when all they are
doing is the same agriculture that has been going on in this
country for hundreds of years, grazing cattle.
There are a lot more people who will be regulated under
this that have no contact with the government. Not everybody
signs up for a government program. There are a lot of people up
there that step away from them just so they can keep their
private business private. So now you are going to net those
people that don't have any contact with the government as far
as regulations, and I don't think that is the intention.
Senator Boozman. Right.
Mr. Mortenson. And again I will go back to the anger issue.
When people learn, when this gets out in the country
widespread, everybody understands what is going to be required.
We went through the animal ID thing a few years ago when you
saw the anger there. I think this will be 10 times worse,
because basically it gives the government the same kind of
information that the animal ID was going to give, and the anger
in the country will be tremendous.
Senator Boozman. Very good.
Mr. Satterfield, Arkansas produces a lot of chickens, a lot
of poultry, much like the Delmarva Peninsula; we have that in
common. Again, we talked about this, but tell me, tell the
Committee how poultry growers keep their ammonia levels low. I
know that, again, my experience has been that these are not
huge, corporate owned entities, these are family farms that
people work in, young people are out there working in and
participating. Tell me how you strive to do that.
Mr. Satterfield. Thank you, sir.
Senator Boozman. And tell me about the success in striving,
what you are accomplishing.
Mr. Satterfield. These are family owned farms on the
Delmarva Peninsula who have contracts with the chicken
companies, and the chicken companies have certain animal
welfare standards, and the grower's primary job is to make sure
the conditions in those chicken houses are good for the birds;
one, because it is the right thing to do and because if there
are problems because of high ammonia levels, that is not good
for the animal. That does not allow the bird to grow to its
full potential, and that cuts into the income of the families.
So keeping moisture levels low in the houses is important
because moisture is necessary in the creation of ammonia. About
20 years ago, the watering systems in these chicken houses--and
the birds are raised on the floor, they are not in cages--the
watering systems changed from open troughs or open pans to a
nipple drinker system kind of like a water fountain. The bird
pecks at it, the drop comes down, so you have less water going
onto the litter, less potential for human conditions, less
potential for the development of ammonia. So that has been an
important poultry health step.
The USDA provides cost share money for acidic products to
go in the chicken houses on the bedding material, when the
birds are not in there, to reduce the pH, which will nullify
the creation of ammonia, so that is important.
The feed conversion I mentioned, the more of the feed that
goes into the creation of meat, less nitrogen is coming out the
rear end of the bird, less opportunity for ammonia to be
So those are the big ones. And then we have our buffers
program to capture the emissions once they come out of the
chicken houses in low levels. Remember, the birds are down here
on the floor; a human being up here. If he is smelling a lot of
ammonia, imagine what the little chick is smelling. If there is
too much ammonia, it impairs the quality of the bird and the
quality of the paws, the feet of the birds, which are a very
valuable export product. So high ammonia levels reduce the
quality of the product that the companies want to sell, so
everybody has an interest in keeping those ammonia levels down.
Senator Boozman. So the reality is, through science and
technology, there has been tremendous advancement in recent
years in that regard.
Thank you, Mr. Chairman, we appreciate it.
Senator Rounds. Thank you, Senator.
Senator Markey, I know you just pulled in. Are you prepared
to ask some questions at this time?
Senator Markey. Yes, I am. Thank you. Thank you, Mr.
Chairman, very much.
Mr. Kuhn, do you agree that high doses of emissions can
pose a health hazard to workers and nearby communities?
Mr. Kuhn. Certainly.
Senator Markey. According to the CDC, these emissions can
cause ``chemical burns to the respiratory tract, skin, and
eyes; chronic lung disease; and even death.''
Mr. Kuhn, do you agree that nearby communities should be
able to find out whether they are being exposed to high
quantities of these chemicals?
Mr. Kuhn. Yes, I do.
Senator Markey. The CERCLA reporting requirements are
triggered for farms that emit more than 100 pounds of ammonia
or hydrogen sulfide a day. Some of these larger farms emit as
much as 2,000 pounds of ammonia daily, and these are dangerous
chemicals, and animal agriculture operations account for about
three-quarters of our national ammonia pollution, according to
the EPA. Unfortunately, the bill we are considering here would
permanently keep the public from understanding where that
pollution is coming from by removing reporting requirements.
Mr. Satterfield, since the D.C. Circuit Court decision last
April that farms should report hazardous emissions from animal
waste as directed under CERCLA, have farmers had success in
working with the EPA to get clear guidance put in place to
explain how to report their emissions?
Mr. Satterfield. No, sir, they have not.
Senator Markey. And to what do you attribute that?
Mr. Satterfield. Part of the problem is the difficulty in
measuring emissions from chicken houses. There was a study done
in 2007, the National Air Emissions Monitoring Study, to
develop emission factors that would allow farmers, on their
farms, to calculate it. When the data were collected, it went
to the EPA Scientific Advisory Committee, which said these are
not good data. We don't have a real good way to measure the
emissions and to share the measurement techniques with the
farmers, because the emissions depend upon the age of the bird,
the breed of the bird, the age of the bedding material on the
floor, whether it has been around for years or just months, the
climate, the humidity.
So one size fits all does not work for every chicken house.
So until EPA figures out what is the best method to give to
every grower for him or her to measure emissions, there is no
way that that person accurately can measure the emissions.
Senator Markey. So do you think that the Trump EPA should
do a better job in working with farmers, collaborating with the
farmers to make the reporting work for everyone, is that what
you are saying? The Trump EPA is not collaborating well with
Mr. Satterfield. Well, I am not saying they are not
collaborating. And I think a new study is underway. I think
that was on the EPA Web site in late 2017 or early 2018, that
efforts are underway to develop----
Senator Markey. I appreciate that. But what you are saying,
right now, the farmers are left to muddle through the issues
themselves, without getting the full cooperation from the Trump
EPA, and they are just leaving the farmers out there on their
own and in a state of confusion, almost like chickens with
their heads cut off, right? They don't have a direction that
they are being given by the EPA.
CERCLA actually does require the communities to have
information they need to protect themselves. If industries emit
dangerously high levels of hazardous chemicals, they should be
reporting that under CERCLA. If we carve out a huge industry,
we will cut into the safety of American families.
So, Mr. Kuhn, how would you solve this problem? What do you
think the EPA should be doing here so that we can keep the
standards which we have, but ensure that there is much closer
collaboration going on between the Trump EPA and the farmers?
Mr. Kuhn. Well, I would like to mention that the ability
already exists to measure hydrogen sulfide, ammonia, and even
odor. After the passage of the legislation in 2004, the DNR was
required to do studies on emissions of hydrogen sulfide and
ammonia. They are trained in doing that. Inspectors were even
taught about scentometers, where they could determine on a
regular basis the odor that is emitted from these.
So I am a little concerned that we talk about technology at
one time, and then we say we don't have the ability to test it.
Certainly, we do. So I just don't believe that--I am not really
trusting the EPA when they promulgate the guidance on their new
rule that would eliminate this. There needs to be it somewhere,
and it is not coming from the State, and it is not coming from
CERCLA. It is not going to come from EPCRA. Who is going to
provide it? People like the Schwartzkopfs are still suffering.
Senator Markey. I agree with you, and I think the EPA
should just, in the words of Bill Belichick, do their job, get
it done, cooperate, send clear guidance, and I think we would
be in a much better position.
So I thank you, Mr. Chairman; I thank the Ranking Member.
Senator Rounds. Thank you.
Senator Inhofe. Thank you, Mr. Chairman.
Let me apologize to the Committee here. I have been
chairing the Armed Services Committee, and I fear that what I
am going to ask has already been covered, but it hasn't been
covered to me yet, so if there is a little redundancy here, I
do apologize for that.
The FARM Act, I am a cosponsor of that, it exempts the
registered pesticide products in air emissions from animal
waste from reporting requirements. In December the EPA
published a final rule to exempt all farms from reporting
these. The rule was struck down last April by the U.S. Court of
Appeals, the D.C. Circuit.
This would be to Mr. Mortenson. In your testimony you say
that the biggest challenges in your industry are urban
encroachment, natural disasters, and government overreach. I
know a little bit about that, the lengths of government, what
they can do and control every aspect of American life. I spent
a number of years chairing this Committee, and we lived through
I find it interesting that the last Administration agreed
that these reporting requirements weren't needed or wanted by
agencies tasked with responding to emergency situations. Yet,
the environmentalists sued, and you have to wonder why, as you
stated in your written testimony, there is no environmental
benefit, but it seems there is a lot of very specific
information that is required in reporting these emissions.
So I would ask you, is there concern among your community,
the farmers and ranchers, about how this information could be
used to someone's disadvantage if it were in the wrong hands?
Mr. Mortenson. Thank you for the question, Senator Inhofe.
Yes, there is. We are quite proud of our environmental record
not only on the ranch, but as a State. We have done a very good
job of keeping the waters----
Senator Inhofe. That is interesting you start off with
that, because that is so obvious. The ones who are really
concerned are the ones who own the land, and yet there is this
idea that Government has to come in and tell you how to make
your land look right and farm right.
But go ahead.
Mr. Mortenson. Absolutely. One thing I would like to
mention, our ranch was one of four that was featured in a
Smithsonian exhibit called Legacy of the Land, and it ran for 6
months, and then it was taken by the Library Association
throughout the country on a 4 year tour. So, you know, we are
trying to do the right thing by the environment. It is very
important to us; we make our living off it.
So the problem I see coming is that people don't know this
thing is coming; a lot of them are unaware of it. And on May
1st it is going to hit the fan, you know, the manure is
literally going to hit the fan, because they then have 30 days
to report, and where is the information? Where do I get
information on pasture based livestock to make any kind of
judgment on how much ammonia or hydrogen sulfide my cattle are
producing, and how does that change over the seasons?
I talked about the dung beetle earlier. They are burying
that cow pat within an hour of it hitting the ground. In the
wintertime, obviously, they are not, but there is so much
science that is lacking here that there is no way I can make
accurate report, and if you get junk in, you get junk out.
Senator Inhofe. Yes. I am very familiar with your area; I
spent some time with the Chairman there. There is a lot of
beauty there, and I was not aware that you were singled out and
honored in such a way, and I am very proud of you.
Mr. Satterfield, your testimony addresses the fact that
information that would be reported is viewed by the EPA as
essentially useless. I know the Coast Guard shares this view.
Yet your industry and the rest of the ag community will be
charged with reporting these largely unknown and low level
Is there concern among the industries as to the ability or
inability to report this information accurately and the
potential legal liability that they would be exposed to if they
Mr. Satterfield. The method does not exist to give chicken
growers the formula on how to measure emissions from their
houses. EPA, as I mentioned to Senator Markey, put on its Web
site it is in the process of trying to figure this out again.
There was an effort a dozen years ago or more, millions of
dollars spent to try to figure this out, and it couldn't be
So EPA, according to its Web site a few months ago, is
going to try again, and then--and only then--will the growers,
the chicken growers, the family farmers have the tools they
need to figure out what their emissions are.
One of the concerns we have is that a lower threshold is to
be reported based on the EPA current guidance, an upper
threshold, and then a yearly total. Well, the activists often
take the numbers that best suit their purpose, which would be
the upper threshold, and say that is it, for every chicken
house, for 365 days a year, we have a huge problem out there,
when in fact, when a little itty bitty chick in a house of
them, 25,000 to 30,000 birds, is not producing the upper
threshold, which is at the maximum time coming out of the
There are times between flocks there is no ammonia being
sent out of the houses. So that is a concern, that the numbers
are going to be turned by the critics of the animal
agricultural industry to suit their purposes.
Senator Inhofe. And they seem to be in charge, too, quite
Let me just end on a positive note. Mr. Mortenson, you are
probably familiar with the partnership program. We did this
program, it was back during the Obama administration, and they
came out and they inspected, at our request, in fact, I made
this a requirement, to get confirmation that they make at least
two trips to my State of Oklahoma and really spend some time on
the farms and the ranches.
They came up with the conclusion that they are the ones who
are really concerned about their own land, about the
environment. I thought that was a great discovery, because that
kind of broke the ice for the first time in my memory that
Government doesn't know as much about your land as you do.
Mr. Mortenson. Absolutely. We hosted the regional----
Senator Inhofe. Was that Fish and Wildlife you hosted?
Mr. Mortenson. No, it was the EPA Administrator out of
Denver, and I can't remember what her name is.
Senator Inhofe. Oh, OK.
Mr. Mortenson. Very fine lady. But we gave her a tour of
the ranch, and she was really taken aback by what is going on
on the land, and the care that we not only give livestock, but
the land and the water, and our concern for the health of it
all, how it all works together as a system, and if part of it
isn't healthy, none of it is healthy.
So it is very important to us, and I speak for myself, and
I think, the industry as a whole, that the environmentalist
part of it is the most important part. We are trying to do the
right thing, and I believe we are.
Senator Inhofe. I believe you are, too.
Mr. Chairman, pardon the interruption, Senator Booker.
Thank you for your tolerance.
Senator Rounds. Thank you, Senator Inhofe.
Senator Booker, I think you have outlasted everybody else
on your side. I think it is your turn.
Senator Booker. I appreciate that, sir, and again, thank
you very much for this hearing.
Mr. Kuhn, could we just go real quick and just give a
general answer of do you support this bill, S. 2421, and why or
Mr. Kuhn. No, I do not, as it is currently written. I think
it is a step backward. People like the Schwartzkopfs and
thousands of neighbors like them in Iowa have waited a long
time. I explained the process through which the State of Iowa
went, when they attempted to establish meaningful air emission
standards for Iowa, and that failed.
I understand that the U.S. Coast Guard might not be the
best place for this type of information to be presented, but
for the Schwartzkopfs and other families like them, they want
it somewhere, and they are not getting the answers they need
Neighbors do have the right and the need to know. When the
manure is spread on the fields--I mentioned about a million
gallons from a typical tank--it can be spread immediately
adjacent to a neighbor's residence or their private drinking
water well, and the CAFO operator is given up to 24 hours to
incorporate it into the soil.
During that time, the smell from literally hundreds of
thousands of gallons of liquid manure can be overwhelming, and
both the State representative and county supervisor have been
called many times by my constituents, who have no place to turn
but leave their homes.
Second, neighbors also need to know everything they can
about dangerous air emissions so they can provide that data to
their doctor when explaining the symptoms that affect their
personal health. Hydrogen sulfide and ammonia emissions can
have serious short and long term consequences. Neighbors need
to be able to document that exposure so they can receive proper
treatment for their conditions. The conditions that the
Schwartzkopf family suffers from are real.
And finally, as I stated in my written remarks, there is a
real reason why eliminating dangerous air emissions would be
detrimental to a neighbor. Last year, Governor Terry Branstad
signed a law that limits damages that can be awarded to a
person who wins a lawsuit against a CAFO. The new law requires
``objectively documented medical evidence and proven to be
caused by the facility.'' That terminology would eliminate
studies and research done by universities and rely on actually
documented research that the neighbors have to find for
themselves. If reporting requirements under CERCLA and EPCRA
are eliminated, good neighbors like the Schwartzkopfs will not
be able to access information, and therefore, denied any chance
for justice in Iowa against the powerful CAFO industry.
Senator Booker. And I think it is important the trends. New
Jersey actually has a lot of farms. We actually are the Garden
State and produce a lot of this nation's produce. But there is
a trend going through farming in America, which is small and
mid-sized farms are getting fewer and far between, and these
massive operations, massive agribusinesses are coming about.
You are seeing that in the poultry industry and the pork
As you said, some of these massive companies are not even
American companies, like Smithfield, which is a Chinese owned
company; and these concentrations mean the imagery I grew up
with of farming and the farmers that I know a lot of in New
Jersey, which are small farmers and not producing the kind of
waste that we are talking about, but these massive
agribusinesses do create these hazards.
And the expansion you talked about in your earlier remarks
of what is happening in Iowa, one thing you didn't mention on
the record, as we look out the front yard of the Schwartzkopfs,
the CAFO there has the right to expand; they could literally
put another CAFO. As we see the pork industry growing in the
State of Iowa, this expansion could have even a bigger
deleterious effect on average Iowans, correct?
Mr. Kuhn. Yes, it does. This particular CAFO did not
require what is called a master matrix application because it
falls one pig short of 1,000 animal units, and typically the
industry builds them at that level so they don't have to go
through this county process.
But when they expand, as this site did attempt to expand,
they have to go through the county for a hearing, and the
county goes out, and it is actually the responsibility of the
Board of Supervisors to ensure that that application meets all
separation distances and passes a minimum threshold, sort of a
Well, in this case, when the operator decided to expand his
CAFO, he was required to come before the county board, and at
that time, according to the laws of the State of Iowa, another
site closer to this one was approved; and the only reason it is
not in this picture is because the operator failed to start
construction within 1 year. If they did, we could have seen
another CAFO, which would have been about 1,878 feet from the
bedroom window of the Schwartzkopfs.
So that is the problem we have. The owners of the CAFO
don't live near it; the owners of the pigs don't live near it.
But the Schwartzkopfs and the rural residents do.
Senator Booker. Well, I don't know if this is real or not,
that you introduced legislation in the Iowa legislature that
would have said that people who own CAFOs have to live near
them. Probably would have solved the problem real quick if that
became the issue.
I just want to finish, because I have a lot of respect for
Mr. Mortenson and the industry that you are in, the cattle
industry. In New Jersey it is a common saying to say someone is
all hat and no cattle, but sir, you are hat and cattle, and I
have a lot of respect for that.
In my opening statement, I agree, I said, I hope you heard,
that pasture based ranchers like you should not have to do this
kind of emissions reporting; it really, to me, as you said, it
borders on the absurd or crossed over into the border of the
absurd. But there is a fundamental difference between the type
of livestock raising that you do and what goes on in these
large CAFOs with huge manure lagoons where numerous people have
And I want to put into the record, I only grabbed one
article of the death as a result of these CAFOs. If I may put
that into the record.
Senator Rounds. Without objection.
[The referenced information was not received at time of
Senator Booker. As a direct result of emissions. But you
know that there is a fundamental difference between what Mr.
Kuhn is talking about and the kind of animal agriculture that
you do, sir.
Mr. Mortenson. Yes, I do. I understand the difference. And
I am not an expert on that end of it, the CAFOs; I have no
experience with them. I am just here to tell you about a ranch
in Stanley County that is scared to death of this thing.
Senator Booker. And I respect that.
And I want to say for the record that the Chairman has not
invited me to come out and visit your county. I hope he does. I
try to pull him to Jersey all the time.
But your testimony says that there are no large CAFOs in
your county, and I respect that, but someone in another State,
who lives just a couple thousand feet from a huge CAFO, whose
health and whose children's health are having to deal with the
stench, have to deal with not being able to put clothing on the
line, have to deal without having to open their windows.
You can understand why someone living next to that would be
begging for the help of the government. And governments were
established in this nation, if you read our founding documents,
for the protection of the citizenry. You can understand why
folks would be appealing to the government to please do
something about the health and safety risks that they are
experiencing as a result of these CAFOs, is that correct?
Mr. Mortenson. Yes, I can understand that.
Senator Booker. Thank you, sir.
And the last point I want to make is that reasonable
regulations--as a former mayor, I had to cut through so much
unreasonable regulations to deal with trying to get things done
and help people get jobs, and economic opportunity is so
But what we see often here, and I see this in the river in
Newark, New Jersey, is often what businesses do is they
externalize their costs onto other people, and they internalize
their profits. That is not the free market; that is finding
ways to do shortcuts that are hurting Americans. It is
perverting capitalism and the free market by pushing costs out
to the commons and internalizing profits. The river in Newark,
New Jersey, is polluted because of the bad practices of
businesses. Large corporations, through a type of corporate
villainy or theft from the future, did that.
Right now, I talked to the head of the EPA in our hearing
that the Illinois River is being polluted by a lot of the waste
of animals that have been pouring into those rivers.
So I am just hoping, Mr. Chairman, that we can find a
balance, or I should really say to rebalance the scales to get
rid of unneeded regulations on the people and ranchers, but to
make sure that families, now a growing number of American
families, as these CAFOs, as you said, in Iowa, are becoming
more prevalent in our society as folks like the Chinese are
finding very creative ways to outsource their pollution onto
Americans and import the finished product into their countries,
that we find a way to rebalance the scales for health and
safety for suffering families suffering from respiratory
diseases, cancers, and the like, and to undo the undue
regulations that are ranchers like Mr. Mortenson. I believe we
can find that balance, but I think we still have work to do.
Thank you, sir.
Senator Rounds. Thank you, Senator Booker.
I think, just to wrap this up, first of all, the idea
behind the Subcommittee is to really be able to get in to look
at the issues, learn a little bit more about the legislation
involved, and to recognize that sometimes, as Mr. Kuhn has
brought out there, there are issues that many cases your local
units of government, as a mayor would understand, as a State
legislator would understand; I am a former State legislator,
that the question in many cases is where do you best address
some of the issues, where is the best place to go.
One size does not fit all. We have different sizes here,
different types of activities, all of which are trying to be
addressed by one single piece of legislation.
I think what we have learned today is, No. 1, there is a
need to address the challenges that are found within the
legislation or found within the rulemaking processes of the EPA
today. The second part is that there is room for not just
Federal, but also State and local zoning, and rulemaking to be
involved in this as well.
I have appreciated what all three of you have had to offer
to this process today. The legislation before us is, in my
opinion, a very good attempt to try to fix what is an impending
disaster for a lot of small farms across this entire country.
At the same time, we recognize the need to try to address the
concerns of all of our citizens across the country as well.
So I want to thank Senator Booker for his participation in
this, as well as the rest of our Committee members. I would
really like to thank all of our witnesses today for their
testimony; you have all provided valuable information to us as
we move forward.
So, at this time, I would once again say that the record
for this Subcommittee will be open for 2 weeks, and that would
bring us until Thursday, March 22nd.
With that, this hearing is adjourned.
[Whereupon, at 11:50 a.m. the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
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