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E-M:/ Update: CERCLA exemption for livestock waste moves forward in House

Enviro-Mich message from "Anne Woiwode" <Anne.Woiwode@sierraclub.org>

Thanks to those who have previously weighed in with your Congressional
Representative and Senators regarding efforts to exempt "manure", including
the hazardous substances contained in concentrated animal feeding operations
(CAFO) wastes, from having to comply with key federal laws.  

In a rare process that serves both to suppress public debate and recorded
votes by members of Congress, HR 4341, which would exempt hazardous
substances associated with livestock waste from CERCLA, was discharged from
the House Energy and Commerce Committee yesterday.  Although there were
probably enough votes to pass it using the normal process, Chairman Barton
(R-TX) simply reported the bill out of committee without any vote.  

Below is a letter sent by a large number of environmental and other
organizations to members of the US Senate and House regarding this
legislation.  Please contact your own member of Congress and Michigan's US
Senators and urge them to OPPOSE efforts to move this legislation forward.
One possible scenario of concern is that this may be added to a must pass
appropriation bill as a rider. 


Earthjustice . Environmental Defense . Environmental Integrity Project .
Food and Water Watch . Friends of the Earth . The Humane Society of the
United States . Idaho Conservation League . Izaak Walton League of America .
League of Conservation Voters . The Minnesota Project . National
Environmental Trust . Natural Resources Defense Council . Sierra Club .
Sustainable Agriculture Coalition  . Union of Concerned Scientists . U.S.
PIRG . Waterkeeper Alliance . Western Organization of Resource Councils

OPPOSE H.R. 4341 AND S. 3681

September 20, 2006

Dear Member of Congress:

We urge you to oppose S. 3681 and H.R. 4341, which would exempt hazardous
substances associated with excess amounts of livestock waste, such as
phosphorus, ammonia and hydrogen sulfide, from key definitions under the
Comprehensive Environmental Response Compensation and Liability Act (CERCLA)
and the Emergency Planning and Community Right to Know Act (EPCRA).  This
may also emerge as a rider to an appropriations bill.  We urge you to oppose
these unwarranted exemptions, which will result in increased threats to
drinking water supplies, force water users to bear the costs imposed by
sloppy operations and withhold important information about air toxics from
emergency responders and neighboring communities.

Representatives of some large-scale agriculture operations have argued to
members of Congress and to farming communities that such action is urgently
needed to protect family farms from frivolous lawsuits and allow farmers to
continue to use manure as fertilizer for crop production.  These assertions
are not based in fact: Superfund's cost recovery and reporting requirements
do not threaten responsible operators who manage manure as a valuable

As you know, the size of livestock operations has increased tremendously in
recent years.  Unlike in earlier decades, many of today's large-scale
operations confine thousands, or even millions, of animals in closed
buildings, producing huge volumes of waste material that can pose serious
threats to air and water resources.  A number of the large confined animal
feeding operations generate as much waste as - or more than - a small city,
but few of these facilities employ sophisticated means of treating this
waste material. 

Some large livestock operations now find themselves producing more waste
than can be responsibly managed by traditional land application practices.
Instead of responding to this situation by adopting more advanced treatment
or moving waste materials outside of watersheds that cannot tolerate
additional pollutant loadings, some operations simply "dump" excess manure.
Whether they allow leaks and spills from manure storage lagoons, spray or
apply manure to frozen or bare ground or simply overapply far in excess of
the agronomic needs of crops, their practices result in pollution of
groundwater and surface water with excess nutrients and dangerous pathogens,
arsenic and other toxic metal compounds and antibiotics.  

The City of Waco, Texas, for example, is spending more than $54 million for
capital improvements specifically to deal with taste and odor problems
caused by excessive phosphorus released from dairy cow waste.  Facing what
appeared to be ever-increasing water treatment expenditures to eliminate
ever-increasing nutrient loadings from agricultural operations, the City
urged upstream feeding operations to adopt better manure management
techniques.  When that effort failed, they used the most effective legal
tool available: a Superfund cost recovery suit. The suit - against 14
operations that had a history of problems - was used not to shut down
dairies or collect monies from farmers, but to leverage new, enforceable
agreements for better manure management at these facilities.   

If Congress amends Superfund with a special exemption for livestock waste,
it will deny the City of Waco and others like it a crictical device to
protect their valuable water supplies from polluting practices by those
large-scale agricultural operations that fail to properly manage their
waste.  It will declare that water users, not polluters, must bear the
burdens of pollution.

Another impact of the proposed exemptions would be to prevent federal, state
and local emergency responders from accessing information about toxic
releases from these facilities.  For example, many of the large feeding
operations release large volumes of hazardous air pollutants, such as
ammonia and hydrogen sulfide.  A number of studies have found a variety of
health problems among animal feeding operation workers and residents who
live near these operations, including bronchitis, asthma and
antibiotic-resistant bacterial infections. These findings are of great
concern to many rural communities, and action by Congress to ban reporting
by these facilities would do a great disservice to those who are working
hard to develop a better understanding of the full impacts of these

Advocates for exempting livestock waste from CERCLA and EPCRA claim that
livestock operations are strictly regulated under other environmental laws.
In fact, the EPA and the states have failed to adequately control
large-scale agricultural pollution using federal environmental laws.  Even
the largest livestock operations historically have not been regulated under
the Clean Air Act, although many release harmful levels of air toxics such
as ammonia and hydrogen sulfide.  Nor has the Clean Water Act effectively
controlled farm pollution.  It has required large livestock operations to
obtain permits for more than 30 years, but noncompliance is widespread.  The
EPA estimates that only 8,500 of the nation's 18,800 Concentrated Animal
Feeding Operations currently have Clean Water Act permits, even though
approximately 14,000 facilities need permits.

What's more, an animal feeding operation may be exempt from CERCLA to the
extent that its releases are permitted by its Clean Water Act permit. In
addition, livestock producers who are using their manure in quantities that
crops can utilize are protected under the law.  CERCLA already includes a
specific exception for the "normal field application of fertilizer."  Only
those livestock operators who have excess manure, fail to find a viable
alternative use, and so dump it on the land to get rid of it, rather than
use it to fertilize crops, have potential liability. 

Large livestock operations can be significant sources of pollution.
Virtually all of them operate without the air pollution controls, and a
significant number without the water pollution controls that are required
for industrial facilities generating comparable quantities of waste.  We
urge you not to exempt hazardous substances associated with livestock waste
from the health and environmental protections that CERCLA and EPCRA provide.
Thank you for considering our views.


Joe Rudek
Senior Scientist
Environmental Defense

Joan Mulhern
Senior Legislative Counsel

Michele Merkel
Senior Counsel
Environmental Integrity Project

Wenonah Hauter
Executive Director
Food and Water Watch

Sara Zdeb
Legislative Director
Friends of the Earth

Mimi Brody
Director of Federal Affairs
The Humane Society of the United States

Courtney Washburn
Community Conservation Associate
Idaho Conservation League

Nat Mund
Deputy Legislative Director
League of Conservation Voters

Br. David Andrews, CSC
Executive Director
National Catholic Rural Life Conference
Velma Smith
Senior Policy Associate
National Environmental Trust

Jon Devine
Senior Attorney, Clean Water Project
Natural Resources Defense Council

Debbie Sease
Legislative Director
Sierra Club

Martha Noble
Senior Policy Associate
Sustainable Agriculture Coalition

Susan Prolman, J.D.
Washington Representative
Union of Concerned Scientists

Anna Aurilio
Legislative Director

Steve Fleischli
Waterkeeper Alliance 

Lonnie Kemp					       Donny Nelson
Senior Policy Analyst				       Chair
The Minnesota Project				       Western Organization
of Resource Councils

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