[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
H.R. ___ , THE FARM REGULATORY CERTAINTY ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 9, 2017
__________
Serial No. 115-77
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
__________
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COMMITTEE ON ENERGY AND COMMERCE
GREG WALDEN, Oregon
Chairman
JOE BARTON, Texas FRANK PALLONE, Jr., New Jersey
Vice Chairman Ranking Member
FRED UPTON, Michigan BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ANNA G. ESHOO, California
MICHAEL C. BURGESS, Texas ELIOT L. ENGEL, New York
MARSHA BLACKBURN, Tennessee GENE GREEN, Texas
STEVE SCALISE, Louisiana DIANA DeGETTE, Colorado
ROBERT E. LATTA, Ohio MICHAEL F. DOYLE, Pennsylvania
CATHY McMORRIS RODGERS, Washington JANICE D. SCHAKOWSKY, Illinois
GREGG HARPER, Mississippi G.K. BUTTERFIELD, North Carolina
LEONARD LANCE, New Jersey DORIS O. MATSUI, California
BRETT GUTHRIE, Kentucky KATHY CASTOR, Florida
PETE OLSON, Texas JOHN P. SARBANES, Maryland
DAVID B. McKINLEY, West Virginia JERRY McNERNEY, California
ADAM KINZINGER, Illinois PETER WELCH, Vermont
H. MORGAN GRIFFITH, Virginia BEN RAY LUJAN, New Mexico
GUS M. BILIRAKIS, Florida PAUL TONKO, New York
BILL JOHNSON, Ohio YVETTE D. CLARKE, New York
BILLY LONG, Missouri DAVID LOEBSACK, Iowa
LARRY BUCSHON, Indiana KURT SCHRADER, Oregon
BILL FLORES, Texas JOSEPH P. KENNEDY, III,
SUSAN W. BROOKS, Indiana Massachusetts
MARKWAYNE MULLIN, Oklahoma TONY CARDENAS, CaliforniaL RUIZ,
RICHARD HUDSON, North Carolina California
CHRIS COLLINS, New York SCOTT H. PETERS, California
KEVIN CRAMER, North Dakota DEBBIE DINGELL, Michigan
TIM WALBERG, Michigan
MIMI WALTERS, California
RYAN A. COSTELLO, Pennsylvania
EARL L. ``BUDDY'' CARTER, Georgia
JEFF DUNCAN, South Carolina
Subcommittee on Environment
JOHN SHIMKUS, Illinois
Chairman
DAVID B. McKINLEY, West Virginia PAUL TONKO, New York
Vice Chairman Ranking Member
JOE BARTON, Texas RAUL RUIZ, California
TIM MURPHY, Pennsylvania SCOTT H. PETERS, California
MARSHA BLACKBURN, Tennessee GENE GREEN, Texas
GREGG HARPER, Mississippi DIANA DeGETTE, Colorado
PETE OLSON, Texas JERRY McNERNEY, California
BILL JOHNSON, Ohio TONY CARDENAS, California
BILL FLORES, Texas DEBBIE DINGELL, Michigan
RICHARD HUDSON, North Carolina DORIS O. MATSUI, California
KEVIN CRAMER, North Dakota FRANK PALLONE, Jr., New Jersey (ex
TIM WALBERG, Michigan officio)
EARL L. ``BUDDY'' CARTER, Georgia
GREG WALDEN, Oregon (ex officio)
C O N T E N T S
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Page
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, prepared statement................................... 1
Hon. Paul Tonko, a Representative in Congress from the State of
New York, opening statement.................................... 2
Hon. Frank Pallone, Jr., a Representative in Congress from the
State of New Jersey, prepared statement........................ 67
Witnesses
Hon. Dan Newhouse, a Representative in Congress from the State of
Washington..................................................... 4
Prepared statement........................................... 6
Hon. Jim Costa, a Representative in Congress from the State of
California..................................................... 9
Prepared statement........................................... 11
Dan Wood, Executive Director, Washington State Dairy Federation.. 14
Prepared statement........................................... 16
Answers to submitted questions............................... 121
Amy Romig, Partner, Plews Shadley Racher & Braun, LLP............ 19
Prepared statement........................................... 21
Answers to submitted questions............................... 126
Jessica Culpepper, Food Project Attorney, Public Justice......... 33
Prepared statement \1\....................................... 35
Answers to submitted questions \2\........................... 131
Lynn Utesch, Founder, Kewaunee Citizens Advocating Responsible
Environmental Stewardship...................................... 48
Prepared statement \3\....................................... 50
Answers to submitted questions \4\........................... 154
Submitted Material
Statement of the U.S. Environmental Protection Agency............ 69
Statement of Adaptive Seeds...................................... 71
Statement of over 1,400 farmers, ranchers, business owners,
health experts, communities, and public interest groups........ 74
Statement of Estela Garcia....................................... 95
Statement of Friends of Toppenish Creek.......................... 97
Statement of Gloria Herrera...................................... 99
Statement of the Natural Resources Defense Council............... 101
Statement of the Rural Empowerment Association for Community Help 103
Statement of Community Association for Restoration of the
Environment.................................................... 105
Statement of The Guardians of Grand Lake St. Marys............... 107
Statement of The Johns Hopkins Center for a Livable Future....... 112
Statement of Washington State public interest groups............. 117
----------
\1\ The attachments to Ms. Culpepper's statement can be found at:
https://docs.house.gov/meetings/if/if18/20171109/106603/hhrg-
115-if18-wstate-culpepperj-20171109.pdf..
\2\ The attachments to Ms. Culpepper's answers can be found at:
https://docs.house.gov/meetings/if/if18/20171109/106603/hhrg-
115-if18-wstate-culpepperj-20171109-sd006.pdf.
\3\ The attachments to Mr. Utesch's statement can be found at:
https://docs.house.gov/meetings/if/if18/20171109/106603/hhrg-
115-if18-wstate-uteschl-20171109.pdf.
\4\ The attachments to Mr. Utesch's answers can be found at:
https://docs.house.gov/meetings/if/if18/20171109/106603/hhrg-
115-if18-wstate-uteschl-20171109.pdf.
H.R. ----------, THE FARM REGULATORY CERTAINTY ACT
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THURSDAY, NOVEMBER 9, 2017
House of Representatives,
Subcommittee on Environment,
Committee on Energy and Commerce
Washington, DC.
The subcommittee met, pursuant to call, at 10:13 a.m., in
room 2322, Rayburn House Office Building, Hon. John Shimkus
(chairman of the subcommittee) presiding.
Present: Representatives Shimkus, McKinley, Blackburn,
Harper, Flores, Hudson, Cramer, Carter, Tonko, Ruiz, Peters,
McNerney, Pallone (ex officio).
Staff Present: Allie Bury, Legislative Clerk, Energy/
Environment; Jordan Haverly, Policy Coordinator, Environment;
A.T. Johnston, Senior Policy Advisor, Energy; Mary Martin,
Chief Counsel, Energy/Environment; Alex Miller, Video
Production Aide and Press Assistant; Tina Richards, Counsel,
Environment; Dan Schneider, Press Secretary; Jacqueline Cohen,
Minority Chief Environment Counsel; Rick Kessler, Minority
Senior Advisor and Staff Director, Energy and Environment;
Alexander Ratner, Minority Policy Analyst; and Catherine
Zander, Minority Environment Fellow.
Mr. Shimkus. We are going to call this subcommittee to
order. And in the interest of time, I am going to not do my
opening statement, and I will submit that for the record.
[The prepared statement of Mr. Shimkus follows:]
Prepared statement of Hon. John Shimkus
The Subcommittee will now come to order.
I want to thank our witnesses for joining us today--
especially my colleagues from Washington and California. The
Discussion Draft that we are considering today is an outgrowth
of Mr. Newhouse's bill, H.R. 848.
I want to mention that even though they were not able to
send someone today to present testimony in person, the
Environmental Protection Agency provided a written statement to
be included in our hearing record. [I seek unanimous consent to
enter EPA's statement into the record. So ordered]. The Agency
has also agreed to taken written questions from Members for our
hearing record.
I now recognize myself for 5 minutes for giving an opening
statement.
Today, we consider the intersection of our environmental
laws with modern agriculture. Agriculture plays a significant
role in my District, as it does in many of our Districts. My
District is the 17th largest Congressional district in the
country in terms of farm operators and number of farms.
Agriculture covers 7.5 million acres in my District. I know my
colleagues began this effort because of some cases involving
dairy farms, but this bill would also help hog farmers who are
trying to do the right thing. My District can also lay claim to
the largest pork producing county in Illinois--Clinton County--
which has roughly 230,000 hogs.
The Resource Conservation and Recovery Act was enacted in
1976. Congress specifically addressed agricultural operations
and clearly intended to include certain agricultural practices,
but at the time Congress was focused on waste disposal
practices that resulted in open dumping. In the legislative
history of RCRA the Committee specifically noted that RCRA was
not intended to apply to an agricultural operation that returns
manure or crop residue to the soil as for fertilizer or soil
conditioner because if it was reused, it was not discarded and
therefore, not solid waste.
Likewise, in its regulations implementing RCRA, EPA also
determined that manure and crop residue, if returned to the
soil as fertilizer or soil conditioner, are not solid waste.
As a result, agricultural operations are not regulated
under RCRA. Rather, they are typically regulated under the
Clean Water Act, the Safe Drinking Water Act, or similar state
regulatory programs.
Most farmers are good stewards of the soil--but not all.
There are some who cut corners or do not store or apply manure
in a way that complies with the appropriate agronomic practices
or with applicable permits and regulations. In the case of
agricultural operations that mishandle manure, the applicable
regulatory process should be allowed to play out. The regulator
governing the operation is responsible for the agricultural
operation's compliance. The regulator should be able to work
with the agricultural operation to bring them into compliance.
The use of RCRA citizen suits as a hammer to force compliance
should only be used as a last resort. If the operator is
working with the regulator to come into compliance, then a RCRA
citizen suit on top of whatever action is being taken by the
state or federal government under the appropriate regulatory
program, feels punitive.
The Discussion Draft is sponsored by Mr. Newhouse who has
been diligently working on this issue for many years. The
purpose of this bill is not to shield agricultural operations
from RCRA citizen suits, but rather to ensure that if state or
federal regulators are otherwise seeking compliance through
civil, criminal, or administrative actions and the agricultural
operation is trying to be a good actor by working with the
regulator and has entered a consent agreement or order, then a
RCRA citizen suit may not be initiated. If the state or EPA are
not diligently taking action to obtain or ensure compliance,
the bill does not preclude citizen suits.
I thank my colleagues for being here today to talk about
their legislation and I thank our second panel which is
comprised of someone who knows firsthand the impact of
duplicative RCRA suits on dairy farms, an experienced
environmental attorney who has handled a number of RCRA citizen
suits as well as agricultural issues, an attorney who handles
public justice and food safety issues, and a representative
from an environmental stewardship organization.
With that, I yield back my time and now yield to my friend
from New York, the Ranking Member of the Subcommittee, Mr.
Tonko.
Mr. Shimkus. Congresswoman Blackburn, did you want a second
or two to say something?
Mrs. Blackburn. I will submit mine for the record, and I
thank you for the hearing.
Mr. Shimkus. Thank you.
And I yield back my time, and now turn to the ranking
member, Mr. Tonko, from New York.
Mr. Tonko. Mr. Chair, I will yield back to you and submit
my statement to the record.
[The prepared statement of Mr. Tonko follows:]
Prepared statement of Hon. Paul Tonko
Thank you, Mr. Chairman, and thank you to our colleagues
Mr. Newhouse and Mr. Costa for being here to share their views
on the Farm Regulatory Certainty Act.
I am sure Mr. Newhouse and Mr. Costa will want to brag
about their states' agriculture, so I hope you will allow me a
minute to talk up my home state.
Dairy is an important part of New York's agricultural
output, and I am proud to represent a number dairy farms in the
Capital Region. New York is home to around 5,500 dairy farms
and produces the third most milk of any state.
I am also proud to be the grandson of a dairy farmer. In my
youth, I spent many days working on my grandfather's farm in
the Town of Florida, New York.
So I have great respect for dairy farmers, and I know they
care about being good stewards of the environment.
The Resource Conservation and Recovery Act, commonly known
as RCRA, was enacted in 1976 and governs the disposal of solid
and hazardous waste, which can include manure and crop residue.
In my view, the discussion draft before us today doesn't
pass the smell test. And while we may hear a few more bad jokes
this morning, let me tell you, this is an incredibly serious
issue.
The legislation would amend provisions of RCRA to block the
availability of citizen suits in some cases involving manure
and crop residue.
RCRA provides a mechanism for citizen suits when pollution
has endangered public health and the environment and when EPA
or state agencies are not effectively enforcing the law.
As we will hear from Ms. Culpepper on the second panel,
RCRA's citizen suit provisions have in fact been used regarding
manure.
However, citizen suits are already prohibited by the law if
EPA or the state is taking action under RCRA or CERCLA.
RCRA, including the citizen suit provisions, does not apply
when manure and crop residues are returned to the soil as
fertilizers. But RCRA does cover agricultural waste.
It is clear from at least one recent court case that there
is a point where manure has been applied to the soil in amounts
far exceeding the agronomic rate, at which point, the exemption
for manure as a fertilizer no long applies. It is being
improperly disposed of as waste.
I want to stress the importance of preserving the
opportunity for citizen suits when necessary.
Many of our nation's most important environmental laws,
including RCRA, allow private citizens to bring suit in order
to enforce the law.
We will hear testimony this morning that will make it clear
that these suits are not frivolous. Communities support their
local dairies--they work on these farms.
And people take these actions only as a last recourse when
public health is put at risk.
I do not want to set a bad precedent of limiting citizen
suits under environmental laws, and I believe that the
legislation before us today is far too broad.
According to EPA's statement for the record, EPA believes
that EPA and state actions against an agricultural operation
under other statutory authorities--not just RCRA or CERCLA--
could bar the types of citizen suits affected by this bill.
That means RCRA citizen suits would be prohibited if there
is any pending action against an agricultural operation, even
if it has no relationship to the RCRA violation.
Unfortunately, there are some bad actors in every industry.
Some farms are breaking the law in how they manage manure,
resulting in pollution of groundwater and putting Americans'
health at risk.
Protecting people's drinking water, including protecting
groundwater sources for private wells, must be a top priority,
not just for this Committee, EPA, or State agencies, but for
all Americans.
When EPA or a state fails to enforce the law, citizens must
have the right to do something about it.
I have no doubt that most farmers want to do the right
thing, but in the rare case where this does not happen, I am
very hesitant to remove this last avenue for legal recourse.
I look forward to hearing from our colleagues and the other
witnesses, and I yield back.
Mr. Shimkus. Thank you very much for that.
The full committee chairman is not here. The ranker of the
full committee--they are downstairs. OK. So anyone else want to
say something for, like, 1 second?
Seeing none, we want to welcome our colleagues here on this
bill, and we would like to--what is the proper courtesy, the
Republican or the older guy? Costa is much older.
So we will recognize Congressman Newhouse for 5 minutes for
a statement on the bill.
STATEMENT OF THE HON. DAN NEWHOUSE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
Mr. Newhouse. Good morning, Chairman Shimkus, Ranking
Member Tonko, members of the committee. Thank you for the
opportunity to testify before you this morning on this
discussion draft of the Farm Regulatory and Certainty Act. And
I also want to thank my good friend Mr. Costa who was the
cosponsor of this bipartisan legislation.
So I represent hardworking farmers of central Washington
State. And as a Member of Congress serving with you all in this
body, I want to speak to you as a peer on specific issues that
are currently faced by dairy and other livestock producers, not
only in my community but in your communities, in districts all
throughout this country.
So I am a third-generation farmer. I am a former director
of the Washington State Agriculture Department. So I know how
seriously the farmers take the responsibility of being good
stewards.
Farming communities like mine in Yakima County face a
multitude of challenges. It is one of the most highly regulated
industries in our country. My constituents know all too well
the kinds of challenges encountered when operating a family
farm--I can speak from personal experience--from inconsistent
regulations to severe labor shortfalls, weather, prices--all
kinds of things that are out of your control.
But our farming communities need to know the rules of the
road. They need and deserve as much certainty as they can have.
That is why I am with you today.
So in 2013, in Washington State, a dairy was proactively
working with the Environmental Protection Agency to address
nutrient management issues on their farm. Up until this time,
the dairy had operated under the stringent Washington State
Nutrient Management Program through WSDA, which is a state-
approved nutrient management plan. They had been doing this for
nearly two decades. But in the face of strong EPA enforcement
actions, the dairy entered into a tough consent decree with the
EPA to ensure that the farm corrected problems and complied
with applicable management requirements.
After entering into the agreement to develop these stronger
environmental protections, a third party obtained documents
between the EPA and the dairy. Ultimately, the dairy was
subject to a citizen suit under the Resource Conservation and
Recovery Act.
The goal of environmental rules should be to assist ag
producers to improve nutrient management and reduce the
environmental footprint, not to subject them to lawsuits that
threaten to put them out of business. That is why I am here
today to discuss this legislation.
This seeks to encourage farmers to be proactive stewards
and create a climate to reinforce farmers' ability to trust
that they, as they work with regulators, that their efforts to
address stewardship issues will result in outcomes that benefit
the environment and not result in exposing farmers who are
working in good faith to comply with the law to third-party
lawsuits creating kind of a double-jeopardy situation.
So this legislation is straightforward. It is limited in
scope to the citizen suit provisions under the RCRA. Simply
put, this legislation covers only the agricultural activities
that are already exempt under EPA's regulations. This
legislation would not prevent EPA from enforcing regulations
under the Safe Water Drinking Act, the Clean Water Act, or any
other applicable laws, nor would this legislation exempt
livestock producers from any laws or any regulations intended
to govern agricultural operations.
So I firmly believe that farmers have and must continue to
lead the charge on good stewardship and conservation. The
discussion draft before you today seeks to protect farmers who
are trying to do the right thing by working with state or
Federal agencies to address nutrient management issues.
And I want to thank you, Mr. Chairman, for holding this
hearing, as well as the full committee chairman, Mr. Walden,
and also for their staffs working with me on this legislation.
I hope we can get this what I would call commonsense
legislation signed into law.
Thank you very much, and I would yield back.
[The prepared statement of Mr. Newhouse follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. The gentleman yields back his time.
The chair now recognizes the Honorable Jim Costa, Member of
Congress from the 16th District of California.
And you are recognized for 5 minutes.
STATEMENT OF THE HON. JIM COSTA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Costa. Thank you very much, Chairman Shimkus and
Ranking Member Tonko and members of this subcommittee, for
giving us the opportunity to testify before you on an important
issue affecting the food producers of America and, for me,
those in California who I have the honor and privilege to
represent.
I am a strong supporter of the Farm Regulatory Certainty
Act introduced by Representative Dan Newhouse and myself. We
have more than 60 cosponsors. It is a bipartisan piece of
legislation. I want to thank Representative Newhouse for your
work on this legislation and for asking me to be a part of this
important effort.
This bill would prohibit third parties from engaging in
legal actions against agricultural operations that are actively
working with the Federal Environmental Protection Agency or a
State regulator to improve the environmental compliance with
whatever issue that they are dealing with, in essence, on their
farm. We are talking about providing peace of mind to farmers
and incentivizing good environmental stewardship.
Like Representative Newhouse, I am, too, a third-generation
farmer. Growing up on my family's dairy farm taught me many
redeemable skills, some that obviously could be more valuable
than what we do here, but not the least of which was to care
for and sustain the land that we farm. Today, obviously, I have
that honor and privilege to represent those farmers, those
dairy men and women, who make up the backbone of the San
Joaquin Valley.
California, as many of you know, is the country's largest
agricultural state. Last year it was over $45 billion at the
farm gate, an abundance that includes over 400 commodities. We
have been blessed with over a third of the Nation's vegetables,
two thirds of the Nation's fruits and nuts. Let's go light on
the latter part there. But we do produce 70 percent of the
world's almonds and 50 percent of the world's pistachios, and
the list goes on.
In 2016, the value of California's dairy production was
over $6 billion, and the district I have the honor to represent
is the third-largest producer of milk in the entire country.
This is all achieved while complying under some of the most
rigorous and environmental regulations in the world, not just
what we have on the Federal level, but California, I might add,
I think, sets the highest bar as it relates to a state
regulatory environment.
For agriculture to be successful, then, for our local
communities, the environment, obviously, we want it to be
healthy and safe. That is why both surface and groundwater
contamination is taken so seriously on our water in California.
Because farmers are reliant on the environment with which
they farm, they are active in regional efforts in California to
address nitrate and salinity issues that are occurring in
various parts of California's Central Valley. The state Water
Resources Control Board, the Central Valley Regional Water
Quality Control Board, the environmental communities, numerous
municipalities, agricultural water districts, and many others
are also engaged in the actions to protect this precious
source, our water.
But California also has a long history of working with
regulators to address environmental concerns. This legislation,
as the author noted, would not change that relationship at all.
The bill before us today, the Farm Regulatory Certainty Act,
was developed out of fear that many producers in my state have
with litigation brought upon them by third parties. And this
isn't something that is anecdotal, but this is something that,
unfortunately, happens with some regularity.
Similar to the situation in Representative Newhouse's
state, dairymen and ranchers have found themselves in
situations where complying with environmental regulations and
acting in good faith place them in legal jeopardy, and that is
just not right.
The Farm Regulatory Certainty Act will produce and foster a
spirit of collaboration. We believe it incentivizes agriculture
producers to comply with environmental laws and regulations. A
farmer acting in good faith to improve their environmental
stewardship should not be targeted by litigation while they are
cooperatively working to fix the problems and improve their
operations.
Let's realize that, for those of us who have grown up on a
farm and are still farming, farmers depend upon their land for
their livelihoods. They are good stewards of the environment.
If it is not sustainable through one generation to the next
generation, guess what? You can't live off that land. That is
just the reality. It makes no sense to think that they would
believe otherwise. Let us give them the certainty, therefore,
necessary to comply with the regulations put in place by state
and Federal authorities.
The commonsense legislation that you have before you would
go a long ways to improve both the environment and allow
farmers to continue to provide abundant, healthy, affordable
food for our nation and for the world. Nobody does it better
than the American farmer.
Less than 3 percent of our nation's population is directly
involved in the production of food and fiber, and it is an
amazing thing, so much so that I think the majority of
Americans take it for granted. They think their food comes from
a grocery store. It doesn't. It comes from the farms.
So thank you very much, and I will yield back.
[The prepared statement of Mr. Costa follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. The gentleman yields back his time. We
appreciate you coming.
The tradition for us is not to ask you questions. We can do
that privately or on the floor. So we want to thank you.
We want to sit the second panel in respect to everybody's
time.
Thank you for coming.
Mr. Shimkus. And let's get the second panel up and placards
placed.
So as we have our folks sitting, I will recognize each one
of you for 5 minutes. Your full statement has been submitted
for the record. And it is always a challenge to remind people
to press the button, to make sure the microphone is on, and
everything will work fine.
So with that, I want to turn to Mr. Dan Wood, executive
director of the Washington State Dairy Federation.
Sir, you are recognized for 5 minutes.
STATEMENTS OF DAN WOOD, EXECUTIVE DIRECTOR, WASHINGTON STATE
DAIRY FEDERATION; AMY ROMIG, PARTNER, PLEWS SHADLEY RACHER &
BRAUN, LLP; JESSICA CULPEPPER, FOOD PROJECT ATTORNEY, PUBLIC
JUSTICE; AND LYNN UTESCH, FOUNDER, KEWAUNEE CITIZENS ADVOCATING
RESPONSIBLE ENVIRONMENTAL STEWARDSHIP
STATEMENT OF DAN WOOD
Mr. Wood. Thank you. Chairman Shimkus, members of the
committee, Ranking Member Tonko, thank you for the opportunity
to testify. I am Dan Wood, Executive Director of the Washington
State Dairy Federation.
The Washington State Dairy Federation is here in support of
the matter before you introduced by Representative Newhouse and
Representative Costa. We represent about 400 dairy families in
Washington State. We are a member of the National Milk
Producers Federation and the Western States Dairy Producers
Association. Each are also in support of the bill.
Today I will cover the current degree of regulation of our
dairy farms, illustrate how they have been placed in double
jeopardy with the lawsuits, and tell you why the language in
the bill before you will foster a more cooperative relationship
with the state and Federal agencies that have authority for
regulating the dairy farms.
Our dairy farmers strive to be good environmental stewards,
as the Members of Congress just testified before you. They
depend on the land and the water that is necessary for their
farming.
Last year, the Washington State Department of Agriculture
reported that we had a better than 92 percent compliance rate
with our very rigorous State Dairy Nutrient Management Act with
oversight by the Department of Agriculture. Our dairy farms are
regulated by multiple layers of state and Federal agencies,
including the Safe Drinking Water Act administered by the EPA.
If there is an error or allegation that is made with a
state or Federal regulator, the farms should not face a citizen
lawsuit if they are already working cooperatively with the
state or Federal regulators in resolving that error or
allegation.
Citizen lawsuits were intended to put citizens in place of
the regulators if the regulators failed to do their jobs. These
lawsuits were not intended to double down on penalties and
costs or place farms in double jeopardy if they are already
trying to do the right thing and work with the regulators. But
that is exactly what happened in the Yakima Valley in
southeastern Washington State 2 years ago.
Groundwater nitrates that have been high for more than 100
years, predating the dairies and much of agriculture that is in
that area. Region 10 EPA issued a report assigning blame for
those historically high groundwater nitrates to four dairy
families.
That was in 2012. Rather than spend millions of dollars
battling that out, the dairies voluntarily into a detailed and
rigorous consent order with EPA, and those farms were told by
EPA that the matter was resolved in dealing with that.
They had a lot of extra work to do, but they were told that
resolved the matter. And despite that cooperation with the EPA,
the citizen lawsuit under RCRA was then brought against those
dairies, and they had to spend millions of dollars.
The smaller dairy family wasn't able to put up the millions
of dollars for defense, and so they closed their dairy. And
keep in mind that they had entered that EPA consent order, but
it was the lawsuit that put them out of business.
RCRA, or the Resource Conservation Recovery Act, was never
intended to apply to manure or crop residue returned to the
soil as fertilizer or soil conditioner, and that is very clear
in the Code of Federal Regulations that is currently on the
books with the EPA.
The other three farms continued to struggle under the
weight of the costs of compliance, but they are complying with
the consent order. And remember, all of these farms had entered
a consent order with the EPA before they were sued.
To help address the issue, Congressman Newhouse introduced
the Farm Regulatory Certainty Act, which now has 65 bipartisan
cosponsors in the House. Language in the bill would not have
prevented the consent order, but rather the consent order was
the under the Safe Drinking Water Act. It simply would prevent
farmers from getting sued over the very same things that are
dealt with, with the Federal and state regulators.
Importantly, the prohibition on RCRA citizen lawsuits only
applies to the use of nutrients as laid out in the EPA
regulations. It is not an across-the-board exemption, and it is
merely intended to reinforce what is already codified both in
law and regulation pertaining to the scope of RCRA.
If enacted, the legislation would preserve the ability to
work with regulators, it would strengthen the certainty of
doing that. And we would urge your support.
I would be glad to answer any questions.
[The prepared statement of Mr. Wood follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you very much, sir.
I would now like turn to Ms. Amy Romig, partner at Plews
Shadley Racher & Braun.
Ms. Romig. Excellent job.
Mr. Shimkus. That is the only thing I do well.
So you are recognized for 5 minutes, and your full
statement is in the record.
STATEMENT OF AMY ROMIG
Ms. Romig. Thank you. Chairman Shimkus, Ranking Member
Tonko, and members of the subcommittee, thank you for allowing
me to come talk to you today.
I am going to supplement Mr. Wood's testimony about the
general regulatory regime faced by farmers. Under the Resource
Conservation and Recovery Act, citizens can bring suits. RCRA
jurisdiction is triggered whenever there is a solid waste, and
solid waste is defined as garbage, refuse, or something that is
discarded.
RCRA also recognizes that we don't need to send all of our
trash and waste to landfills, that if things have value, we
need to reuse it. RCRA balances this by encouraging recycling
and reusing.
RCRA specifically recognizes that manure has value. It is
exempted from the definition of solid waste and, thus, it is
completely exempted from RCRA jurisdiction if it is
agricultural waste, including manures and crop residues, that
are returned to the soil as fertilizers and conditioners.
So you have two types of manure. You have manure that is
going to be used as fertilizer that is completely exempted from
RCRA jurisdiction, and you have manures that aren't going to be
used as fertilizer that the case that Mr. Wood talked about
found was under RCRA jurisdiction.
Now, why this is important today is, most importantly,
farmers have been regulated, and they have been regulated since
at least 1974 under the Clean Water Act. And, in fact, the most
comprehensive confined animal feeding operation regulations
that were recently passed by the EPA were promulgated under the
Clean Water Act.
So farmers know that they have to comply with the Clean
Water Act. They go and they look at these regulations. They
don't even know how RCRA necessarily applies, because, as I
talked about, they are not completely covered by RCRA,
depending on how they use their manure.
And this makes sense, because if agricultural operations
are going to cause harm, they are likely going to cause harm to
the water, and that is why we look to our water regulations to
protect the harm that farms might cause, if they are going to
cause any.
If there is a problem with farms or these agricultural
operations, the EPA or the state agencies are likely going to
proceed under the Clean Water Act, and that makes sense because
they have complete jurisdiction over all manure under the Clean
Water Act. They don't have to engage in this really tricky, Is
it RCRA manure or is it not RCRA manure?
Now, RCRA does have these citizen suit provisions, as we
have discussed, and, in fact, so does the Clean Water Act, so
does the Clean Air Act. Most of our environmental regulations
do have citizen suit provisions. And all of them have a key
provision, that if you are working with an agency and if an
agency is working with a regulated entity, then the citizen
suits are prohibited.
But the catch and the technicality here is that in each of
these statutes, especially RCRA, the citizen suits are only
prohibited if the agency is proceeding under RCRA or CERCLA.
And as I discussed, that is the Catch-22 here, that the
agencies are likely going to bring these things under the Clean
Water Act.
Now, it makes sense to prohibit these citizen suits,
because, as our Supreme Court has said, we want citizen suits
to supplement the overworked and underfunded agencies. They are
not to supplant or substitute their judgment for those
agencies, because these agencies, we recognize that they have
the expertise and they are independent arbiters to look at how
these agricultural operations are working.
The point is to prevent multiple and numerous lawsuits. It
is to protect these regulated entities when they are working
with the agencies the way they should. If you allow citizen
suits to proceed while the agencies are still working, that can
subject these hardworking businesses to inconsistent results.
The agency can tell them they need to do one thing while the
citizens could tell them they need to do something else, and
that is not fair, to subject these farms to multiple
inconsistent outcomes. And that is because we have a disconnect
here that these farm operations usually are regulated under the
Clean Water Act.
I am not saying that citizen suits don't have a place in
our jurisprudence. In fact, I have represented citizens, and I
have brought citizen suits. However, the jurisdiction and the
mechanisms for these suits need to match the regulations that
the entities are being regulated under. And I would like to
finish my testimony with an example of why these citizen suits
can be harmful.
I represented a particular entity that ran into some
problems, and they had to get new permits. And the citizens
challenged both of those permits in the agency. They had their
chance to say: We don't like how things are being done.
IDEM, our environmental management agency in Indianapolis,
brought a suit in civil court, and the citizens intervened in
that suit. They had a chance to check over the agency's
shoulder and say they weren't doing it right. They brought an
independent state suit, and we prevailed in all of those
actions. And then they brought a RCRA citizen suit, and that
was the straw that broke the camel's back. It forced this
industry to file bankruptcy.
I am asking the committee to protect businesses from this
double jeopardy. Thank you.
[The prepared statement of Ms. Romig follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. I would like to thank you.
And now I would like to recognize Ms. Jessica Culpepper,
Food Project attorney for Public Justice.
Ma'am, you are recognized for 5 minutes.
STATEMENT OF JESSICA CULPEPPER
Ms. Culpepper. Chairman and members of the subcommittee, I
sincerely appreciate the opportunity today to discuss the draft
bill offered by Mr. Newhouse.
As you just heard, Congress included a citizen enforcement
provision when it passed the Resource Conservation and Recovery
Act, which I will refer to as RCRA, in 1976 so that people
could protect themselves when the government fails to fix the
problem.
Four decades later, a community in Yakima, Washington, used
RCRA to successfully protect their private drinking water from
manure contamination after the state and Federal government
actions and inactions failed them. And this bill now threatens
to take away the rights of all citizens in those same
circumstances.
So I am here today to outline why the purported reasons for
passing this bill are redundant with RCRA. I am then going to
tell you what this bill actually does and why it is so
dangerous.
First, you have heard today that RCRA was never intended to
cover fertilizer. We completely agree with that. Even without
this bill passing, RCRA will never apply to farmers fertilizing
their crops, because it is already exempted. RCRA only kicks in
when massive operations are using their lands as a means of
disposal and that manure ends up in your drinking water. And
importantly, Congress specifically identified the disposal of
animal waste as a problem RCRA was designed to address.
In the cases I helped litigate in Yakima, the operations
were applying millions of gallons of manure to land that didn't
need fertilizing. I have also seen frozen solid fields in the
Midwest stacked 2 feet deep with manure.
Those bad actors are not regular farmers. Those operations
use their fields as a means of disposal without regard for what
their crops needed. And the manure disposal in Yakima poisoned
rural communities' drinking water to the point that the
neighborhood school had signs above the water fountains warning
students that the water could make people sick.
So nothing in RCRA will interfere with farmers fertilizing
their crops. What it stops is dumping your waste on a
neighbor's property, in their air, and in their drinking water.
Second, you have heard today that RCRA enforcement could
hurt small family farms. This is simply not true. Even without
this bill at all, small farmers are not in jeopardy for citizen
enforcement actions. This is simply because they lack the
volume of manure required to generate the danger to public
health that triggers RCRA.
If you think of a drinking water aquifer like a glass of
water, a single drop of nitrate, it is not going to do
anything. You will never notice it. But a handful of manure,
that you are going to notice. It takes massive operations to
trigger RCRA.
Third, even without this bill, there is no opportunity for
double jeopardy. As you just heard, RCRA underscores this
safeguard by stating explicitly: If there is a government
action seeking the same cleanup, then citizens cannot enforce
the law. What is important is that the actions that were taken
in Yakima weren't fixing the problem.
That is what this bill is not about. Now let me tell you
what this bill is actually about. RCRA exists to allow the
government and citizens to stop danger to public health in the
environment in emergency situations. The bill dramatically
weakens the citizens' ability to enforce RCRA in the case of
agriculture. It is, in effect, creating a giant loophole in the
law that will stop polluters from being held accountable for
hurting their neighbors.
RCRA is a law of last resort. It is used only in the worst-
case scenarios. But when it is used, RCRA is the only safeguard
the citizens have to protect their private well water from
contamination.
You heard about the Clean Water Act. The Clean Water Act
does not apply to groundwater, so it is not going to fix the
problem. The Safe Drinking Water Act does not apply to private
wells. So if you are a rural American that relies on a private
well for your drinking water, you cannot protect yourself under
the Safe Drinking Water Act.
Citizen enforcement of those laws will not fix problems
faced by rural Americans with dirty wells. If this bill were
passed, it would leave these communities completely reliant on
the government to save them.
What I want to leave here with you today is the purported
reasons for this bill is a fix for a problem that doesn't
exist. It doesn't take a legal scholar to know that there is
something illegal when your water runs brown with manure.
RCRA, and only RCRA, was designed to help the local
communities protect themselves to stop exactly those public
health threats. Citizens must have the right and ability to
protect themselves and enforce RCRA without constraints that
would render that right meaningless.
Thank you.
[The prepared statement of Ms. Culpepper follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[The attachments to Ms. Culpepper's statement can be found
at: https://docs.house.gov/meetings/if/if18/20171109/106603/
hhrg-115-if18-wstate-culpepperj-20171109.pdf.]
Mr. Shimkus. The chair thanks the gentlelady.
We will now turn to Mr. Lynn Utesch, founder of the
Kewaunee Citizens Advocating Responsible Environmental
Stewardship.
You are recognized for 5 minutes. Thanks for coming.
STATEMENT OF LYNN UTESCH
Mr. Utesch. Thank you for allowing me to speak today.
I live in Kewaunee County, Wisconsin. I am a farmer. I
started farming with my uncle on a dairy farm. I currently farm
with my wife and my two youngest sons and raise beef on our 150
acres in Kewaunee County.
Kewaunee County has 15 dairy CAFOs. The groundwater in my
community has been tested and shows that 34 percent of the
wells tested are contaminated with E.coli and/or nitrates. In
the town of Lincoln, it has been tested and shown that over 50
percent of the wells tested are contaminated.
USDA researchers have done extensive researching and found
that there is salmonella, rotavirus, cryptosporidium, and other
pathogens in our water. They have equated our water to that of
a Third World country. Judge Jeffrey Bolt at a CAFO permit
hearing said that water in the town of Lincoln is deplorable
and that the State of Wisconsin has a massive regulatory
failure.
The citizens that live with this water are afraid to drink
their water, brush their teeth, take a shower, and even afraid
to wash their grandchildren's scratches out with their water,
because it may be so contaminated to make them sick.
Kewaunee County has three major rivers: the Ahnapee, the
East Twin, and the Kewaunee rivers. They were former Class 1
trout streams. They now are on the impaired waters list. Our
organization, along with Marquette University, has been testing
the water and the sediment in those streams and rivers, and
they have found MRSA and multiple antibiotic resistant bacteria
in our waters. Why do you think that? Why should we care about
that?
There was a young man that was visiting with his
grandparents and was playing in one of those streams and had a
cut on his knee. It wasn't soon after that that it became
infected and, unfortunately, he contracted MRSA. This young
child was then sent to have part of his kneecap removed and
holes drilled in his leg to drain out the MRSA.
We live along Lake Michigan. Our beaches are filled with
cladophora, which is an algae that grows because of excess
nitrates and phosphorous. They were closed for 20 days in 2014.
Our organization, along with several others, over 3 years ago
petitioned the EPA under the Safe Drinking Water Act to invoke
their emergency powers. We had DNR workgroups. And part of
that, what came out of all of our work groups, was sent to the
Governor's office, yet gutted after lobbying by the dairy
industry.
In the State of Wisconsin there was a Legislative Audit
Bureau report done and they found that over 94 percent of the
time the Wisconsin DNR did not follow their own regulations.
The Farm Regulatory Certainty Act does not provide
certainty. Today you have been told that this is going to hurt
small farmers. The reality of this is that this is a polluter
protection act.
As a farmer, we need to know that we are doing things
sustainably. Unfortunately, there are those that do not, and
they generate so much waste and put it on so little acreage
that it is having a negative impact on people's groundwaters.
As a small farmer, this act does not protect me.
I am asking you, requesting of you, please help my
community. We need the government to do its job. When they
don't, we need to be allowed, the citizens, to be able to do
the enforcement for those agencies.
You have heard earlier that farmers are the most regulated
industries. Unfortunately, they are. But they are also the
least enforced. Please do not allow this bill to go forward.
Thank you.
[The prepared statement of Mr. Utesch follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[The attachments to Mr. Utesch's statement can be found at:
https://docs.house.gov/meetings/if/if18/20171109/106603/hhrg-
115-if18-wstate-uteschl-20171109.pdf.]
Mr. Shimkus. Thank you very much. We appreciate your
testimony.
This is what we are going to do. To my colleagues, the
votes have been called on the floor. I wanted to expedite it so
everyone could be here for the testimony. A couple of us will
be coming back to engage in questions.
But at least we were able to get all your statements in the
record with both of my colleagues here.
So with that, I am going to recess the committee until
after votes, and that may be about 20, 30 minutes.
[Recess.]
Mr. Shimkus. We will call the hearing back to order.
First of all, thank you for your patience.
And I know that some of you have been told to expect, since
a lot of members are going to the airport, it is a fly-out day,
not a lot to be here. I am sure there will be interest in
submitting questions for the record. And if you get those and
can get them back to us, I know there is a timeframe that we
would like it in, but expeditiously, and we will include that
as part of the record of the hearing.
So let me start by recognizing myself for 5 minutes and my
question first to Ms. Romig.
Your written testimony explains that Resource Conservation
and Recovery Act, RCRA, currently bars citizen suits if EPA is
diligently prosecuting someone who is in violation of RCRA or
CERCLA, and that because agricultural operations are not
regulated under RCRA, allowing citizen suits against
agricultural operations under RCRA would result in the
duplication of efforts and excessive litigation that Congress
was trying to avoid.
Doesn't the discussion draft impose the same restriction on
citizen suits in order to allow EPA or the state to diligently
prosecute the laws that do apply?
Ms. Romig. Absolutely. The discussion draft has absolutely
no impact on what the agencies can or can't do. It also doesn't
have the impacts that you heard earlier today on the citizens.
It doesn't prevent them from all lawsuits, it doesn't prevent
them from nuisance actions, trespass actions, property damage
actions. The only thing that this discussion draft does is
prevent them from bringing a RCRA action if they are already
under an enforcement action from an agency under another
statute.
And while we heard that citizen suits are the last resort,
they aren't. They are usually the first resort, because they
are one of the statutes that allow fee shifting where the
winning citizens get to ask the farmers to pay for their
lawsuits. So they will often resort to citizen suits well
before they resort to any other type of lawsuits that are out
there available by common law and by state law.
Mr. Shimkus. Thank you very much.
And just for full disclosure, a lot of people who follow us
know our districts and how they are. So I have more pigs than
people in my district. We have large operations. I am very
proud of that, because it is jobs, and production agriculture
feeds the world. And you heard that from some of my colleagues
in the opening statements.
But there is a balance. And I love hearings. I love the
Congress. And this is our chance to ask questions and get stuff
back, because there is truth somewhere in here and we are
trying to figure out where that is.
Mr. Wood, and this is my written question here, and I
represent a district with significant agriculture presence. I
kind of said that. Can you explain why duplicative litigation
is so detrimental to family farms?
Mr. Wood. Sure. Thank you, Mr. Chair.
In 2013, the farms in the Yakima Valley entered into the
consent order with EPA. In 2013, they were sued under RCRA on
the very same issues that were addressed. They made a decision
to work cooperatively with EPA. They dealt with lagoon testing,
lagoon liners, soil testing, et cetera, et cetera. And all of
those things under the Safe Drinking Water Act were
considerations for doing the right thing. They were financial
considerations. And then they turned around and were sued under
the citizen suit anyway.
So the question now a lot of farmers are asking is: If I am
facing the same situation, do I work with the agency and get
sued or do I wait and see if I get sued? This will bring more
certainty for working with the agencies.
Mr. Shimkus. The EPA region, is that Region 10?
Mr. Wood. Region 10.
Mr. Shimkus. And where is the headquarters at of Region 10?
Mr. Wood. That is in Seattle.
Mr. Shimkus. OK. Because I am in Region 5, and I know some
regions are viewed by people who are on the business side as
really tough.
Mr. Wood. That would be Region 10.
Mr. Shimkus. I would put Region 5 up to the task also of
being a very challenging one for folks. And I think that
probably Wisconsin, I believe, is up in that region. Illinois,
I know that for sure.
Back to Mr. Wood. How would the discussion draft sponsored
by Mr. Newhouse help protect our farmers and other agricultural
operations?
Mr. Wood. Well, it gives them the protection. If they are
under enforcement, whether it be a consent order or a penalty
and any other oversights from a Federal or state agency, then
they have that certainty.
These farms, these four farms were told that they had that
certainty when they were working with EPA on the consent order:
Enter into this rigorous agreement with us, we will provide the
oversight, and the matters are resolved. That turned out to not
be the case. They were dealing with them under the Safe
Drinking Water Act, the very same issues came up with the RCRA
lawsuit.
So they got sued over the same issues they were working
with the agency to resolve. And so the certainty is not there.
I have farmers telling me that if they are faced with a lawsuit
today that they will just fold because of what happened. And
these are large farms, these are small farms. They are saying
that there is no certainty anymore.
Mr. Shimkus. And my time has expired.
I also have the largest wheat district, corn and beans, and
the largest dairy counties in Clinton County, Illinois. So it's
not near the size of some of the big areas, but we do have
that.
So with that, I would like to yield to the ranking member
of the subcommittee, Mr. Tonko, for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair.
Sometimes we hear about citizen suits as a sort of
bogeyman, but these suits can be valuable to actually enforcing
the requirements that we passed into law and empowering
ordinary people to protect themselves and their communities.
So, Mr. Utesch, I want to thank you for your testimony.
This subcommittee has spent a lot of time thinking about how to
ensure Americans have access to safe drinking water, and it is
important to hear the perspective of rural communities that
primarily rely on private wells. It really sounds like you have
taken a lot of steps to work with farms, as well as the local
and state governments, to try to address the given problem.
You mentioned a number of suits that have come about. Is
that in the past as a situation or----
Mr. Utesch. We have petitioned the EPA under the Safe
Drinking Water Act, like I said, over 3 years ago. We also have
petitioned the EPA, we have petitioned for corrective action,
and, unfortunately, we have really seen minimal amount of
action by the EPA to actually address those issues.
To put it in perspective, our community petitioned the EPA
before Flint, Michigan, did and we have yet to see a response
from them officially as to what they are going to go do. We
have received no drinking water for our citizens from any
government entity, other than our local high school working
with citizens that provides clean water on an ongoing basis for
the citizens in our community.
So even at the state level, we have done work with the
Wisconsin Department of Natural Resources, and every time that
we try to get some enactment to make things better for our
citizens it is constantly being pushed back against by lobbying
groups. So that is part of our issue, is that we are not
getting the response from the government regulatory agencies to
actually fix these issues.
Mr. Tonko. And can you give a few examples of what you have
been doing to try to protect your community?
Mr. Utesch. At the local level, mainly at the town and
county level, we have towns in our community, the town of
Lincoln has actually put in place a moratorium to not allow any
further expansions of the CAFOs in their community. They
currently have three. So 3 out of the 15 that are in Kewaunee
County, that will affect them.
We have also put in place at the county level, we have
enacted a winter spreading ordinance that makes it so that from
March until April 15th that there is no application of liquid
manure on 20 feet or less to bedrock.
The one thing that has been identified through all the
research in our community is the spring runoff, the snowmelt,
is one of the biggest issues for contaminating our groundwater,
and that was something that was passed in our county. It had to
go to a referendum to all the towns and it was passed by every
single town in our county.
Mr. Tonko. Do you get paid to do this work?
Mr. Utesch. No, I do not. This is all voluntary.
Mr. Tonko. What would it mean for a community that is
dealing with problems like yours if we prohibited citizen
enforcement of our waste laws?
Mr. Utesch. One, I believe that we would not get our water
fixed. While our community is not looking at pursuing this at
this point in time, we want to work with those agencies, but I
think without having this available, it makes it so that even
the state and Federal agencies have to do the work.
So without that threat, I guess would be a good way to put
it, of citizens taking this into their own hands, it doesn't
make it so that the state and Federal agencies actually do do
the work that they should be doing.
Mr. Tonko. And, Ms. Culpepper, how have you worked with
communities trying to protect themselves from manure pollution?
Ms. Culpepper. Thank you for that question.
I work with communities nationwide. In fact, I also work
with Lynn's community. And I have seen that these communities,
despite what we heard earlier, that litigation is the absolute
last thing that they want to do.
In rural communities, their children go to school together,
they go to church together, they live next to each other. They
don't have other people to depend on. And the last thing that
they want to do is litigation.
But it is also incredibly frustrating for them when for
decades they work with state and Federal agencies trying to get
a solution to their problem and they don't.
In the Yakima lawsuits, when EPA stepped in under the Safe
Drinking Water Act, the consent decree didn't fix their
problem. And that was why, after two decades of trying to fix
it, that they invited us to bring that lawsuit. And that
lawsuit brought clean drinking water to a 3-mile radius around
the dairies, dozens of households that had water seven times
above the legal limit for nitrates suddenly getting access
clean to water.
Allowing these citizens the chance to stand up for
themselves and not rely on a government that is not showing up
for them, or that is falling down on the job, or showing up
with actions that don't fully fix the problem, is critical,
particularly given the public health purpose of RCRA.
Mr. Tonko. Mr. Chair, I yield back.
Mr. Shimkus. The gentleman yields back.
The chair recognizes the gentleman from Georgia, Mr.
Carter, for 5 minutes.
Mr. Carter. Thank you, Mr. Chairman.
And thank all of you for being here. Obviously, this is
something that is very important.
Mr. Wood, I want to start with you. It is pretty clear, at
least to me, that congressional intent and that the EPA
regulations, that manure was never intended to fall under this
category within RCRA. And I am just wondering, prior to this
Washington ruling, what were the regulatory requirements that
dairy farmers had to follow for manure under the law?
Mr. Wood. Thank you, Congressman.
The language in the Code of Federal Regulations is pretty
clear, that RCRA is not to apply to livestock, manure, or to
crop residues returned as fertilizer or soil conditioners.
I want to very quickly just mention some of the areas dealt
with in the 2013 consent order. Lagoon testing and liners, soil
testing, groundwater monitoring wells, detailed reports,
composting stalls, testing pipes, and more were all dealt with
in that consent order in 2013.
Was the citizen lawsuit the last resort? Absolutely not. It
was filed in 2013 against the dairies. So arguing that it
didn't resolve the problem I think is not supported by the
timeline on this.
The dairy Nutrient Management Act governs our dairies, EPA,
Department of Ecology, and more.
Mr. Carter. In that lawsuit, as I understand it, the judge
found that the farms' manure storage facilities weren't
constructed to USDA's Natural Resource Conservation Service
standards. Can you explain those standards to me? I am not
really familiar with those. What does that mean?
Mr. Wood. The NRCS standards deal with the proximity to
groundwater, the shape, the size, the permeability. There was
no record of compliance with NRCS standards, not because they
didn't comply, but because they didn't receive NRCS funding.
And so some farms that build the storage lagoons on their
own will not go to NRCS for matching funds. And so NRCS did not
have a record of that.
Mr. Carter. OK.
Ms. Romig, this case, this Washington case really opened up
new legal pathways against farmers, and under a bill, as we
said earlier, that was never intended for manure to be
included. Have these citizen lawsuits, have they changed the
way environmental regulations are enforced, in your opinion?
Ms. Romig. In my opinion, they are trying to enforce
existing regulations. So they are not claiming that the
regulations aren't sufficient. They are claiming that the
agencies aren't doing so.
And in this lawsuit, I would like to point out, in
Washington, that whether or not the district courts have
jurisdiction is dependent upon whether or not something has
been prosecuted. But in the Washington case, you had 111 pages
and multiple experts just to determine whether it was manure
regulated by RCRA or not. And that is not what is supposed to
happen in the Federal courts. You are not supposed to have to
have all of these experts just to determine whether the court
should even act.
Mr. Carter. OK. Then given this case may have been a case
that--a situation, an example of where the citizen filing a
case, filing a lawsuit was not necessary, and I will go ahead
and say abused, have you seen cases where it was useful?
Ms. Romig. Yes. In fact, just even the process of starting
a citizen suit is useful. You have to file notice with the
agency that you think there is a problem, and that allows the
agency to realize there is a problem and to step in. The notice
is also useful because if you are the regulated entity, it
gives you an opportunity to fix what they are complaining about
before you have the lawsuit.
So the process is useful, but I think it can be pushed too
far. And our courts have consistently held that when an agency
is diligently prosecuting, that they should be given the first
crack at this. And then the regulated entities should receive
comfort, if they are working with the agency, that they won't
be subject to further litigation.
Mr. Carter. So you have seen cases of abuse. You have seen
cases also where it can be useful.
Ms. Romig. Absolutely. I have used them in cases to be
useful.
Mr. Carter. OK. Point well taken.
OK, Mr. Chairman, I yield back. Thank you.
Thank you all.
Mr. Shimkus. The gentleman yields back his time.
If it is OK with you all, it is highly irregular for us on
a fly-out day to say we are going to go with one more round of
questions. That means everybody gets 5 more minutes. And we
would like to do that, if that is OK with you all, because this
is, obviously, great testimony, both sides. We appreciate it
and we understand the emotion of that.
So I think we just want to drill down a little bit more.
And you have the chairman and the ranking member. And so let me
begin.
So I want to go to Ms. Culpepper.
So here is the challenge that we have. We fight against the
EPA all the time, and usually we Republicans don't always say
nice things about them because we think they are very
aggressive. They are so aggressive that they can close down
businesses, they create economic harm, and all this stuff. And
especially with the last administration, we were really tough
on them. So it is hard for us to wrap our arms around the EPA
not being vigilant. That is a hard bar for us to cross over.
So then we have this consent decree that we think--I am
going to read some of these provisions--that we think is a
pretty tough document. And then I think the issue is, when the
parties agree to this, their stake in their livelihood and
their faith of, ``OK, we have got an agreement, we are going to
comply with this agreement,'' and then the citizen suit is just
another sledgehammer that has, as Mr. Wood said, and I don't
have any reason to doubt him, that one of the operations went
bankrupt or closed in this process.
So in the consent decree EPA had directed the dairies under
the order to provide clean drinking water to all users in a 1-
mile-down gradient. Is that true?
Ms. Culpepper. Yes, that is true.
Mr. Shimkus. OK.
Another part of the consent decree was that EPA instructed
the dairies to install an extensive series of groundwater
monitoring wells. Was that your understanding of that consent
decree?
Ms. Culpepper. Yes.
Mr. Shimkus. EPA also required that dairies, told them to
address the issues with manure lagoons, including lining the
lagoons. We have had a lot of discussions about lining in this
committee. Is that part of that consent decree?
Ms. Culpepper. My understanding is that they were to assess
their lagoons and that if there were certain problems then they
would need to line them.
Mr. Shimkus. OK.
The other part was the administration order required for
dairies to follow procedures dictated by a professional
agronomist to achieve a specific nitrate level in the soil as
part of the consent decree?
Ms. Culpepper. My understanding is that they were
encouraged to take certain conservation measures, but that
those measures were not mandatory to a level that would stop
contamination.
Mr. Shimkus. OK. And that is why we have the hearings. I
believe this, but I also have no reason to doubt your analysis
of that.
And your written testimony states that in this case the
state agency had not taken action and that EPA had not taken
enough action to solve the problem. The way the citizen suit
provisions work is that citizens are only allowed to step in
when the agency has not done anything. You do not get to step
in because you disagree with what the agency has done. Is that
your understanding?
Ms. Culpepper. Yes, certainly.
Mr. Shimkus. So things were done, I guess that is the
issue.
Ms. Culpepper. If I may respond.
Mr. Shimkus. Sure, of course.
Ms. Culpepper. Sure. Things were down under the Safe
Drinking Water Act. And I think we can all agree here that
mismanaged manure can have a multitude of different problems,
right? One of them can be addressed by the Safe Drinking Water
Act. But the Resource Conservation and Recovery Act, RCRA, it
addresses a broader set of issues.
So the way that you handle your waste, the way that you
dispose of your waste, the way that you store your waste, those
are things that are handled only under RCRA. But moreover, it
doesn't apply to private well users.
And so one of things that was a concern is that that 1-mile
radius didn't reach all the people who had wells above the
limits, right? And so when they brought action, we were able to
get them that water.
And the other thing is that we were able to say: No, you
have to line those lagoons, and you do have to limit, it is not
voluntary, it is not assessment, you have to store, process and
dispose of your waste in accordance with RCRA, which is
different from the Safe Drinking Water Act.
Mr. Shimkus. OK. Thank you very much.
I only have 9 seconds left, so I will yield back my time
and turn to Mr. Tonko for 5 minutes.
Mr. Tonko. Thank you.
Ms. Culpepper, according to EPA's statement for the record,
EPA believes that EPA and State actions against an agricultural
operation under other statutory authorities, not just RCRA or
CERCLA, could bar the types of citizen suits affected by this
bill. That means RCRA citizen suits would be prohibited if
there is any pending action against an agricultural operation,
even if it has no relationship to the RCRA violation.
Do you agree with EPA's reading of that language?
[The information appears at the conclusion of the hearing.]
Ms. Culpepper. Yes. Thank you for that question, because
that really is essentially the problem, that the drafting of
this bill creates a giant loophole in the citizen enforcement
provision. Literally any kind of enforcement action or
compliance action would prevent people protecting their
drinking water.
So it could be they don't report where they shipped their
manure last September and they are asking them to report that
and fix that problem with their permit and suddenly you can't
protect your drinking water. That is incredibly too broad to
keep to the public health risk that RCRA was trying to prevent.
Mr. Tonko. Thank you. And with the Cow Palace case, did the
community receive any money for bringing the suit?
Ms. Culpepper. Absolutely not. The only thing they did with
that lawsuit was fix the problem.
Mr. Tonko. And in terms of what the community got out of
it, it was just that, or was there any other activity that or
resource that was provided them?
Ms. Culpepper. They got clean drinking water and they got
the assurance that the future aquifer is not going to be
contaminated anymore.
Mr. Tonko. So just to be clear, a citizen suit can be an
expensive undertaking. Since no monetary damages are available,
people can only get relief from the problem. There is not a
financial incentive to bring these types of suits, unless the
problem is serious and there are no other options available. Is
that representative of the experiences you have had?
Ms. Culpepper. Yes. As one of the lawyers who brought the
action, I can say that these lawsuits are incredibly resource
intensive, both in terms of time, in paying the experts to do
this work, to show that the public health crisis is actually
caused by the people that we are suing, right?
But also, as you said, there is no financial incentive. So
the only time you are going to bring these actions is, A, when
there is a public health crisis and there are people like me
who are out there dedicated to stopping these public health
crises; and B, when it is so bad and the facility is so
egregious that going after that facility, you know it is going
to fix the problem. Otherwise people are not going to put
millions of dollars and countless hours into trying to help a
community for something that isn't going to fix it.
Mr. Tonko. So you have been involved in a number of these
public health crises. What would it have meant for the
communities you worked with if they had been blocked from going
to court?
Ms. Culpepper. Well, I want to be clear that there has only
been one of these lawsuits, and that is because it is only
brought in the most egregious of circumstances.
So RCRA lawsuits against agricultural operations is a rare
thing, right? Most--and I think that you would agree with
this--most farmers are doing it right. And therefore RCRA is
not going to apply to them. It is never going to cover a farmer
fertilizing his crops. The only time that this is going to
apply is when they are dumping it in your water supply or
dumping it in a way that is making you unhealthy.
So for these communities, this truly is a law of last
resort. It is when the Safe Drinking Water Act didn't work. It
is when the Clean Water Act didn't work. It is when they have
tried so hard to work with their state and Federal partners to
fix the problem and there is nothing left to them.
I mentioned earlier that people in rural areas do not want
to sue one another. It has to be so bad that they are willing
to go those lengths. And to take that away from them is
literally taking their last tool away to protect their own
private well water, which I think we all know millions of rural
Americans rely on private well water.
Mr. Tonko. Thank you very much, all of you, as witnesses
and for your responses.
And with that, Mr. Chair, I yield back.
Mr. Shimkus. The gentleman yields back his time. It sounds
like we have a tough one here, Mr. Tonko. We are used to them,
right?
Mr. Tonko. Yes, we are.
Mr. Shimkus. So before I adjourn, I need to ask unanimous
consent that these letters be submitted for the record. There
is a list of 11 of them.
Do I have to read them all or they are submitted here? Is
that good enough? All right.
So without objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Shimkus. We want to thank you for coming. And we
apologize for fly-out day. You never know, we could be here
until 2, we could be out at 10.
I want to thank my colleagues in the minority because they
really helped us expedite the process where most members, at
least, got a chance to hear your opening statements and then
allowing for a second round so we could drill down a little
bit.
So with that, thank you for coming and stay tuned. And I
adjourn the hearing.
[Whereupon, at 11:52 a.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
Prepared statement of Hon. Frank Pallone, Jr.
Mr. Chairman, I strongly oppose the bill we are considering
today. It would undermine environmental protection, protect
polluters, and block citizens' access to the courts. I have no
doubt that it would harm public health if adopted.
The bill is also completely unnecessary. We are likely to
hear claims today that farmers are facing regulatory
uncertainty, or overly burdensome regulations. And we may hear
other claims that an overzealous court applied the requirements
of the Resource Conservation and Recovery Act, or RCRA, beyond
what Congress ever intended. These claims are simply not true.
Farmers already enjoy a clear exemption from the requirements
of RCRA, so long as they are acting appropriately. Manure that
is applied as fertilizer is not waste, and is not covered by
waste laws. However, when manure is dumped on land in amounts
far beyond what the land can absorb, that is absolutely waste,
and is exactly the type of dangerous disposal that RCRA was
intended to prevent.
This bill responds to a specific RCRA case in Washington
State concerning a concentrated animal feeding operation that
did not act appropriately. They did not use their manure as
fertilizer. Instead, they stored it in large, unlined lagoons,
and dumped it on their fields in vast quantities. That dumping
polluted groundwater and endangered public health. Why would we
consider legislation that would reward these polluters?
Well, that is exactly what this bill does--it blocks
citizen enforcement of our waste laws to reward polluters. This
bill is among the last things this Committee should be
considering. We could have used this hearing slot to conduct
oversight of the Environmental Protection Agency's
implementation of the Lautenberg Toxic Substances Control Act
reform law we passed last Congress. We could have used it to
look at EPA Administrator Scott Pruitt's questionable travel,
questionable lobbying activities, or questionable use of Agency
resources. We could have used it to look at the pressing issue
of climate change and the implementation of the Paris Agreement
by every country on earth other than the United States.
Instead, we are here today to discuss a bad bill that would
undermine environmental protection and harm public health as a
handout to polluters. It is dangerous, misguided, and, frankly,
poorly drafted. The language is shockingly broad, and would
block citizen suits anytime an agricultural operation is
engaged in an administrative proceeding. That would be true
even if the administrative proceeding is completely unrelated
to the dangerous condition the citizens are trying to address.
I sincerely hope this is merely a drafting error, and something
the sponsors of the legislation will want to correct.
But even if that language is fixed, I will continue to
strongly oppose this bill. We have a responsibility on this
Committee to protect the victims of pollution, not the
polluters. I yield back.
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