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[Archived] A.G.'s Office Testimony on Hazardous Waste

| Environment | November 16, 2005

Oklahoma Assistant Attorney General Kelly Hunter-Burch testified in Washington, D.C. Wednesday, Nov. 16 at a House subcommittee hearing on hazardous substances included in Superfund legislation. Farm groups are attempting to remove animal manure from the materials listed as hazardous substances. This has a direct bearing on A.G. Drew Edmondson's lawsuit against Arkansas poultry companies. Others testifying included the President of the Oklahoma Farm Bureau and an official of Waco, TX where city officials are suing dairy farmers for polluting the city water supply.

The following transcript is prepared from a tape recording of Burch’s testimony and is not intended to represent the actual text, which is not available at this time.

Ed Brocksmith


November 16, 2005

Kelly Hunter-Burch

Washington, D.C.

House Committee on Energy and Commerce

Sub Committee on Environment and Hazardous Materials

Hearing on Superfund laws and animal agriculture.

The Illinois River is an Oklahoma Scenic River and Lake Tenkiller is referred to as the “Emerald jewel in Oklahoma’s crown of lakes”. As a result, tourism is a major part of the region’s economy. The watershed serves as a valuable source of drinking water for 22 municipal water supplies. This watershed is divided almost equally between Arkansas and Oklahoma. The Arkansas side is the center of Arkansas’s poultry industry, which ranks second in broiler production in the United States.

As of 2002, confined poultry feeding operations in the Illinois River watershed were estimated to produce an amount of phosphorus equivalent to a population of 10.7 million people. This waste, in addition to phosphorus, contains nitrogen, arsenic, zinc, copper, hormones, antibiotics, and a myriad of pathogens. Phosphorus, arsenic, zinc, and copper are designated hazardous substances under CERCLA.

This waste is typically improperly stored and disposed of on lands within the watershed far in excess of any legitimate crop needs or capacity of the soil to retain them. The constituents of the waste have been released into the surface water, the ground water, and the sediments of the Illinois River. The result has been widespread and well recognized pollution of an entire watershed.

The state first began negotiations to put an end to these practices with the poultry industry in November of 2001. In the years that followed, the state worked hard to avoid litigation and employed every conceivable method for resolution. From informal negotiations with the assistance of EPA Region 6 and the Arkansas Attorney General, to formal mediation with a former federal judge, all of these efforts failed to bring resolution.

In June of this year, the state was forced to file litigation against responsible companies in federal court. The litigation was filed under Section 107 of CERCLA as well as other state and federal laws. The case was filed on the behalf of the State of Oklahoma and the Oklahoma Secretary of Environment.

The goal of the litigation is to stop the improper disposal and clean up the watershed. It is also important to note that the litigation is directed at the responsible companies and it is not directed at any individual farmers upon whom the companies often place the burden of disposal.

As you can imagine, Oklahoma is strongly opposed to the proposal to exempt releases of hazardous substances by the poultry industry from CERCLA. CERCLA is a long-standing federal law that provides a mechanism for states to protect their citizens and their environment from the danger of hazardous substances. Make no mistake; such an exemption would be a substantial change in the law. There is no animal agriculture industry exemption in CERCLA nor is such an exemption justified.

It is important to understand that the pollution caused by industrial animal agriculture is well documented, serious, and of a nationwide scope. In fact, the EPA has reported that the agriculture sector is the leading contributor of pollutants to the nation’s lakes and rivers. The industrial animal feeding operations are not the family farm. We’re talking about a multi-billion dollar industry that produces an enormous volume of waste.

In 2003, it was estimated that animal feeding operations generated more than 500-million tons of waste, approximately three times more raw waste than generated by humans. The overwhelming majority of these operations are not regulated under the clean water act and they are not adequately regulated in Arkansas. In addition, the hazardous substances found in poultry waste are not naturally occurring. They are in the waste as a director result of an industry’s addition of phosphorus, arsenic, copper, and zinc to poultry feed.

While CERCLA exempts the normal application of fertilizer, it does not exempt widespread surface disposal nor the resulting release of the hazardous substances.

In conclusion, the release of hazardous substances from the poultry industry’s waste disposal practices is a serious problem across the United States. CERCLA provides an important mechanism for the states to respond to the problem and to hold the companies responsible rather than using taxpayer funds to clean up the industry’s pollution. The poultry industry should be subject to the same laws as apply to other industries in the country. Hazardous substances disposal and the resulting pollution should not be condoned by the creation of an exemption for the industry in federal law.

Thank you again for the opportunity to present our views on this issue.