Animal Waste and Hazardous Substances: Current Laws and Legislative Issues
Released: 2016-06-03T00:00:00

Summary:
The animal sector of agriculture has undergone major changes in the last several decades: organizational changes within the industry to enhance economic efficiency have resulted in larger confined production facilities that often are geographically concentrated. These changes, in turn, have given rise to concerns over the management of animal wastes and potential impacts on environmental quality.
Federal environmental law does not regulate all agricultural activities, but certain large animal feeding operations (AFOs) where animals are housed and raised in confinement are subject to regulation. The issue of applicability of these laws to livestock and poultry operations—especially the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, the Superfund law) and the Emergency Planning and Community Right-to-Know Act (EPCRA)—has been controversial and has drawn congressional attention.
Both CERCLA and EPCRA have reporting requirements that are triggered when specified quantities of certain substances are released to the environment. In addition, CERCLA authorizes federal cleanup of releases of hazardous substances, pollutants, or contaminants and imposes strict liability for cleanup and injuries to natural resources from releases of hazardous substances.
CERCLA and EPCRA include citizen suit provisions that have been used to sue poultry producers and swine operations for violations of those laws. In two cases, environmental advocates claimed that AFO operators had failed to report ammonia emissions, in violation of CERCLA and EPCRA. In both cases, federal courts supported broad interpretation of key terms defining applicability of the laws' reporting requirements. Three other cases not dealing with reporting violations also have attracted attention, in part because of questions of whether animal wastes contain hazardous substances that can create cleanup and natural resource damage liability under CERCLA.
In 2008, EPA issued a rule to exempt animal waste emissions to the air from most CERCLA and EPCRA reporting requirements. Legal challenges to the rule followed. In 2010, a federal court approved the government's request to voluntarily remand the rule to EPA for reconsideration and possible modification, but the agency has not yet proposed a new or revised rule or taken other action following the remand. Litigation challenging the exemption rule was restarted in 2015.
The lawsuits testing the applicability of CERCLA and EPCRA to poultry and livestock operations and potential changes by EPA to the 2008 exemption rule have led to congressional interest in these issues. In the 112th Congress, legislation was introduced that would amend CERCLA to clarify that manure is not a hazardous substance, pollutant, or contaminant under that act and that the notification requirements of both laws would not apply to releases of manure (H.R. 2997 and S. 1729). Proponents argued that Congress did not intend that either of these laws apply to agriculture and that enforcement and regulatory mechanisms under other laws are adequate to address environmental releases from animal agriculture. Opponents respond that enacting an exemption would severely hamper the ability of government and citizens to know about and respond to releases of hazardous substances caused by an animal agriculture operation. Similar legislation has not been introduced subsequently.

subsections: section_title: Introduction
paragraphs: The animal sector of agriculture has undergone major changes in the last several decades, a fact that has drawn the attention of policymakers and the public. In particular, organizational changes within the industry to enhance economic efficiency have resulted in larger confined production facilities that often are geographically concentrated. Increased facility size and regional concentration of livestock and poultry operations have, in turn, given rise to concerns over the management of animal wastes from these facilities and potential impacts on environmental quality, public health and welfare.
Animal manure can be and frequently is used beneficially on farms to fertilize crops and add or restore nutrients to soil. However, animal waste, if not properly managed, can adversely impact water quality through surface runoff and erosion, direct discharges to surface waters, spills and other dry-weather discharges, and leaching into soil and ground. It can also result in emission to the air of particles and gases such as ammonia, hydrogen sulfide, and volatile organic chemicals. According to the U.S. Department of Agriculture (USDA), in 1997, 66,000 operations had farm-level excess nitrogen (an imbalance between the quantity of manure nutrients produced on the farm and assimilative capacity of the soil on that farm), and 89,000 had farm-level excess phosphorus. USDA believes that where manure nutrients exceed the assimilative capacity of a region, the potential is high for runoff, leaching of nutrients, and other environmental problems. Geographically, areas with excess farm-level nutrients correspond to areas with increasing numbers of confined animals.
Federal environmental law does not regulate all agricultural activities. Some laws specifically exempt agriculture from regulatory provisions, and others are structured so that farms escape most, if not all, of the regulatory impact. Still, certain large animal feeding operations (AFOs) where animals are kept and raised in confinement are subject to environmental regulation. The primary regulatory focus on environmental impacts has been on protecting water resources and has occurred under the Clean Water Act. In addition, facilities that emit large quantities of air pollutants may be regulated under the Clean Air Act. Some livestock operations also may be subject to requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, the Superfund law) and the Emergency Planning and Community Right-to-Know Act (EPCRA). The issue of applicability of these laws to livestock and poultry operations—especially CERCLA and EPCRA—has been controversial and has drawn congressional attention.
This report describes the provisions of CERCLA and EPCRA, and enforcement actions under these laws that have received attention. Congressional scrutiny (legislative proposals and oversight hearings) is discussed. Bills intended to exempt animal manure from the requirements of CERCLA and EPCRA have been introduced several times since the 109 th Congress, including in the 112 th Congress ( H.R. 2997 and S. 1729 ). Issues raised by the legislation are analyzed.
section_title: CERCLA and EPCRA
paragraphs: Both the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, the Superfund law, 42 U.S.C. §§9601-9675) and the Emergency Planning and Community Right-to-Know Act (EPCRA, 42 U.S.C. §§11001-11050) have reporting requirements that are triggered when specified quantities of certain substances are released to the environment. Both laws, which are administered by the Environmental Protection Agency (EPA), utilize information disclosure in order to increase the information available to government and citizens about the sources and magnitude of chemical releases to the environment. In addition to reporting requirements, CERCLA includes provisions authorizing federal cleanup of releases of hazardous substances, pollutants, or contaminants that may present an imminent and substantial danger to the public health or welfare (§104), and imposing strict liability for cleanup and damages for injury to, destruction of, or loss of natural resources resulting from releases of hazardous substances (§107). At issue today is how the reporting requirements and other provisions of these laws apply to poultry and livestock operations.
CERCLA authorizes programs to remediate uncontrolled or abandoned hazardous waste sites and assigns liability for the associated costs of cleanup. Section 103(a) of CERCLA requires that the person in charge of a facility (as defined in §101[9]) that releases a "reportable quantity" of certain hazardous substances must provide notification of the release to the National Response Center.
EPCRA establishes requirements for emergency planning and notification for storage and release of hazardous and toxic chemicals. Section 304(a)(1) of EPCRA requires the owner or operator of a facility (as defined in §329[4]) to report to state and local authorities any releases greater than the reportable quantity of substances deemed hazardous under CERCLA or extremely hazardous under EPCRA. Under CERCLA, the term "release" (§101[22]) includes discharges of substances to water and land and emissions to the air from "spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching, dumping, or disposing into the environment." Under EPCRA, the term "release" (§329[8]) includes emitting any hazardous chemical or extremely hazardous substance into the environment. CERCLA excludes the "normal application of fertilizer" from the definition of release (§101[22]), and EPCRA excludes from the definition of hazardous chemicals any substance that is "used in routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer" (§311[e][5]).
The CERCLA definition of "hazardous substance" (§101[14]) triggers reporting under both laws. Among the reportable substances that may be released by livestock facilities are hydrogen sulfide, ammonia, and phosphorus. The reportable quantity (RQ) for both hydrogen sulfide and ammonia is 100 pounds per day, or 18.3 tons per year; the RQ for phosphorus is 1 pound per day. Section 109 of CERCLA and Section 325 of EPCRA authorize EPA to assess civil penalties for failure to report releases of hazardous substances that equal or exceed their reportable quantities (up to $37,500 per day under CERCLA and $37,500 per violation under EPCRA). Requirements of both can be enforced by citizens under provisions of the laws, which allow "any person" to commence a civil action against either a person who violates a legal prohibition or requirement, or against EPA for failure to perform a nondiscretionary duty or specified actions (CERCLA §310, EPCRA §326).
In addition to these reporting requirements, CERCLA includes provisions authorizing federal cleanup of releases of hazardous substances, pollutants, or contaminants that may present an imminent and substantial danger to the public health or welfare (§104) and imposing strict liability for cleanup and damages to natural resources from releases of hazardous substances (§107). The applicability of these provisions to animal agricultural sources and activities has increasingly been receiving attention.
section_title: Enforcement Against AFOs
paragraphs: EPA has enforced the CERCLA and EPCRA reporting requirements against AFO release of hazardous pollutants in two separate cases. The first involved the nation's second-largest pork producer, Premium Standard Farms (PSF) and Continental Grain Company. In November 2001, EPA and the Department of Justice announced an agreement resolving numerous claims against PSF concerning principally the Clean Water Act, but also the Clean Air Act, CERCLA, and EPCRA. More recently, in September 2006, the department announced settlement of claims against Seaboard Foods—a large pork producer with more than 200 farms in Oklahoma, Kansas, Texas, and Colorado—and PIC USA, the former owner and operator of several Oklahoma farms now operated by Seaboard. Like the earlier PSF case, the government had brought complaints for violations of several environmental laws, including failure to comply with the release reporting requirements of CERCLA and EPCRA.
The citizen suit provisions have been used to sue poultry producers and swine operations for violations of the laws. In two cases, environmental advocates claimed that AFO operators had failed to report ammonia emissions, putting them in violation of CERCLA and EPCRA. In both cases, federal courts supported broad interpretation of key terms defining applicability of the laws' reporting requirements to livestock operations.
In the first of these cases, a federal district court in Oklahoma initially ruled in 2002 that a farm's individual barns, lagoons, and land application areas are separate "facilities" for purposes of CERCLA reporting requirements, rather than aggregating multiple emissions of pollutants across the entire site. This court held that CERCLA's reporting requirements would only apply if emissions for each individual facility exceed 100 pounds per day. However, the district court's ruling was reversed on appeal ( Sierra Club v. Seaboard Farms Inc., 387 F.3d 1167 [10 th Cir. 2004]). The court of appeals ruled that the whole farm site is the proper entity to be assessed for purposes of CERCLA reporting and determining if emissions of covered hazardous substances meet minimum thresholds.
In the second case, a federal district court in Kentucky similarly ruled in 2003 that the term "facility" should be interpreted broadly to include facilities operated together for a single purpose at one site, and that the whole farm site is the proper entity to be assessed for purposes of the CERCLA and EPCRA reporting requirements ( Sierra Club v. Tyson Foods, Inc., 299 F. Supp. 2d 693 [W.D. Ky. 2003]). While CERCLA provides that a continuous release is subject to reduced reporting requirements, and EPCRA provides an exemption for reporting releases when the covered substance is used in routine agricultural operations or is used on other farms for fertilizer, the court found that these exemptions did not apply to the facts of this case. The ruling was not appealed.
EPA was not a party in either of these lawsuits. The U.S. Court of Appeals for the 10 th Circuit invited EPA to file an amicus brief in the Seaboard Farms case in order to clarify the government's position on the issues, but EPA declined to do so within the time frame specified by the court.
Three other cases in federal courts, while they did not include reporting violations, also have drawn attention, in part because they raised the question of whether animal wastes that contain phosphorus are hazardous substances that can create cleanup and natural resource injury liability under CERCLA. Animal wastes typically contain low levels of phosphorus, and animal wastes are beneficially used as fertilizer on farms. Over the long term, however, the application of animal waste fertilizers may result in phosphorus buildup in soils which may be released to watersheds through surface runoff. In 2003, a federal court in Oklahoma held that phosphorus contained in poultry litter in the form of phosphate is a hazardous substance under CERCLA and thus could subject poultry litter releases to provisions of that law ( City of Tulsa v. Tyson Foods, Inc. , 258 F. Supp. 2d 1263, [N.D. Okla. 2003]). This ruling was later vacated as part of a settlement agreement, but some observers believe that the court's reasoning may still be persuasive with other courts. The second case, City of Waco v. Schouten (W.D. Tex., No. W-04-CA-118, filed April 29, 2004), was brought against 14 dairies alleging various causes of action based on disposal of wastes from those operations. It was resolved by a settlement agreement early in 2006. The third case, State of Oklahoma v. Tyson Foods, Inc. (N.D. Okla., No. 4:05-cv-00329, filed June 13, 2005), was brought by the Oklahoma Attorney General, asserting various claims based on the disposal of waste from 14 poultry operations in the Illinois River Watershed. The state principally sought response costs and natural resource injuries under CERCLA due to release of wastes from these facilities. The case was dismissed in 2010.
The net result of these lawsuits has been growing concern by the agriculture community that other legal actions will be brought and that the courts will continue to hold that the CERCLA and EPCRA reporting requirements and other provisions apply to whole farm sites, thus potentially exposing more of these operations to enforcement under federal law.
subsections: section_title: Administrative Reporting Exemption
paragraphs: In 2005, a group of poultry producers petitioned EPA for an exemption from EPCRA and CERCLA emergency notification requirements for releases of ammonia, arguing that such releases from poultry growing operations pose little or no risk to public health, while reporting imposes an undue burden on the regulated community and government responders. In 2007, EPA formed an internal workgroup to review information on animal waste as it relates to CERCLA and to possible exemptions from emissions reporting, and EPA Administrator Stephen Johnson told congressional committees that the agency would propose a rule to exempt routine animal waste air releases from emergency notification requirements.
In December 2007, EPA issued a proposal in response to the poultry industry petition. It proposed to exempt releases of hazardous substances to the air (typically during digestion or decomposition) from animal waste at farms from the notification requirements of CERCLA and EPCRA. The exemption would apply to releases to the air from manure, digestive emissions, and urea, including animal waste mixed with bedding, compost, and other specified materials. "Farm" was defined in the proposal as an agricultural operation from which $1,000 or more of agricultural products are sold annually (the same definition used by the Department of Agriculture). EPA explained that the rule is justified because of the resource burden to industry of complying with reporting requirements, since the agency could not foresee a situation where a response action would be taken as a result of notification of releases of hazardous substances from animal waste at farms.
The proposal drew significant public response during the comment period. While the proposed exemption pleased many agriculture industry groups who seek a waiver or other means to limit possible liability under CERCLA and EPCRA, environmental advocates and other stakeholders opposed the exemption, saying that emissions from animal wastes are not trivial or benign. Critics noted that the EPA proposal would exempt releases of ammonia, as originally requested in the industry petition, plus hydrogen sulfide and all other hazardous chemicals, such as nitrous oxide and volatile organic compounds released from animal waste. Some argued that an exemption was premature, since EPA was moving forward with research on emissions levels, which could be undermined by a regulatory exemption. State air quality officials recommended that if the agency were to consider any action, it should only be a narrow exemption, such as one based on a size threshold for farms.
In September 2008, the Government Accountability Office (GAO) issued a report evaluating EPA's activities to regulate air emissions and water discharges from animal feeding operations. GAO found that EPA is unable to assess the extent to which pollution from feedlots may be impairing human health and the environment, because it lacks data on the amount of pollutants that CAFOs are releasing to the air and water. GAO recommended that EPA develop a comprehensive national inventory of CWA-permitted CAFOs and accelerate its efforts to develop protocols for measuring and quantifying air contaminants from animal feedlots. GAO noted that EPA has been criticized because its current air emissions monitoring activities are limited in scope and sample size and may not produce sufficient information to shape future regulation. Moreover, GAO questioned the basis for the CERCLA/EPCRA exemption that EPA proposed in 2007. "It is unclear how EPA made this determination when it has not yet completed its data collection effort and does not yet know the extent to which animal feeding operations are emitting these pollutants."
In December 2008, EPA finalized the CERCLA/EPCRA administrative reporting exemption with some modifications to the original proposal. The final rule exempts hazardous substance releases that are emitted to the air from animal waste at farms from the notification requirement of CERCLA. Like the proposal, the final rule relieves all livestock operations of all size, not just poultry farms, from CERCLA's requirement to report hazardous substance releases to the air to federal officials. In addition, the final rule provides a partial exemption for such releases from EPCRA's requirement to report releases to state and local emergency officials. Partially responding to public comments, the final rule continues to apply EPCRA's reporting requirement to large animal feeding operations (those that are subject to permitting requirements under the Clean Water Act), but exempts smaller facilities. A number of groups criticized the final rule, again raising concern about the toxicity of chemicals such as ammonia and hydrogen sulfide that are emitted from animal waste facilities and arguing that CERCLA and EPCRA do not authorize administrative exemptions for specific industries.
In 2009, a coalition of environmental advocates challenged the rule in federal court, as did the National Pork Producers Council ( Waterkeeper Alliance v. EPA , D.C. Cir., Nos. 09-1017, 09-1104 [consolidated]). Environmental advocates continue to argue that the entire rule is deficient, while the pork producers group objects to the fact that the rule only partially exempted releases from EPCRA. Other agriculture industry groups, such as the National Chicken Council, intervened in the litigation in support of the final rule. Parties to the litigation entered into talks to mediate the issues, but in June 2010, the federal government asked to remand the final rule, without vacature, for EPA to reevaluate and possibly modify the rule. The court approved the government's request in October 2010. EPA did not announce a schedule for proposing a new or modified rule. According to press reports, EPA said that it did not plan to directly regulate the emissions, but would seek to require their reporting. In the meantime, the 2008 exemption rule is in effect.
In September 2015, the federal court granted a petition by environmental advocates to reopen the lawsuit challenging the reporting exemption rule; the groups assert that EPA has taken no action on the 2010 voluntary remand of the rule. In briefs in the renewed case, the environmental groups and pork producers have reiterated their previous arguments against the rule. Environmental petitioners argue that the exemption rule contradicts Congress's clear words in CERCLA and EPCRA, while the industry petitioner/intervenors argue that EPA's decision to not include large farms in the EPCRA reporting exemption is arbitrary and capricious. EPA has urged the court to dismiss the case on procedural grounds, saying the petitioners lack standing for the suit.
Under the exemption rule, large CAFOs remain subject to EPCRA's reporting requirements. Facilities' compliance with the rule has drawn some attention: in 2012, the Humane Society notified 51 swine facilities in Iowa, Oklahoma, and North Carolina that it intended to sue them over alleged unreported releases of ammonia in violation of EPCRA. Following that notice of intent, the Humane Society filed a lawsuit against one of the companies that owns swine operations in North Carolina. As of June 2016, a decision in the case is pending.
section_title: Congressional Interest
paragraphs: The court cases testing the applicability of CERCLA and EPCRA to poultry and livestock operations led to congressional interest in these issues. In 2004, a number of Senators wrote to the EPA Administrator to ask the agency to clarify the reporting requirements of the two laws so as to limit their impact on poultry operations. The Senators' letter said that because of unclear regulations and a lack of scientific information about emissions, poultry and livestock producers are uncertain about the laws' requirements and are vulnerable to enforcement actions. In report language accompanying EPA's FY2006 appropriations, the House Appropriations Committee urged EPA to address the issues.
The Committee continues to be concerned that unclear regulations, conflicting court decisions, and inadequate scientific information are creating confusion about the extent to which reporting requirements in [CERCLA] and [EPCRA] cover emissions from poultry, dairy, or livestock operations. Producers want to meet their environmental obligations but need clarification from the Environmental Protection Agency on whether these laws apply to their operations. The committee believes that an expeditious resolution of this matter is warranted.
Also in 2004, some in Congress considered proposing legislation that would amend the definition of "release" in CERCLA (§101[22]; 42 U.S.C. §9601[22]) to clarify that the reporting requirements do not apply to releases from biological processes in agricultural operations and to amend EPCRA to exclude releases of hazardous chemicals produced through biological processes in routine agricultural operations. 
Some Members sought to amend the FY2006 Agriculture appropriations bill, H.R. 2744 , with a provision exempting releases of livestock manure from CERCLA and EPCRA. The proposal was promoted by Senate conferees on the bill, but it was not accepted by House conferees. Proponents, including Senator Larry Craig, contended that the proposed language was consistent with current law, because in their view CERCLA and EPCRA were never intended to apply to agriculture. Environmentalists objected to the language, arguing that it could prevent public health authorities from responding to hazardous substance releases from AFOs, would block citizen suits against agriculture companies for violations of reporting requirements, and would create an exemption from CERCLA liability for natural resource injuries that might result from a large manure spill. EPA's congressional affairs office released an unofficial analysis criticizing the bill. It argued that, by eliminating federal liability for manure releases under CERCLA and EPCRA, the provision could interfere with EPA's Air Compliance Agreement, because companies would have much less incentive to participate in the agreement. The agreement is a plan that EPA announced in January 2005 to collect air quality monitoring data on animal agriculture emissions. The House and Senate gave final approval to H.R. 2744 in November 2005 ( P.L. 109 - 97 ), without the language that Senate conferees had proposed.
Also in November 2005, legislation was introduced in the 109 th Congress to amend CERCLA to clarify that manure is not a hazardous substance, pollutant, or contaminant under that act and that CERCLA's notification requirements would not apply to releases of manure ( H.R. 4341 ). The bill was similar to the legislative language that Senator Craig had proposed to conferees as a provision of the FY2006 Agriculture appropriations bill with a broad definition of "manure" that includes, for example, bedding commingled with animal waste.
H.R. 4341 was introduced the same day that a House Energy and Commerce subcommittee held a hearing on animal agriculture and CERCLA. The Subcommittee on Environment and Hazardous Materials heard from agriculture industry witnesses who urged Congress to provide policy direction on the issue that has developed as a result of recent and potential litigation. Other witnesses testified that the reporting and notification requirements of CERCLA and EPCRA provide a safety net for making information on releases available to government and citizens, and that other environmental laws, such as the Clean Air Act, cannot function in that manner. An EPA witness said that the agency was at the time considering ways to reduce the paperwork burdens for large AFOs to report their emissions (resulting in the December 2007 proposed regulatory exemption, discussed above). Related legislation was introduced in the Senate ( S. 3681 ). Similar legislation was introduced in the 110 th Congress ( H.R. 1398 and S. 807 ), but no further action occurred on any of these bills.
During consideration of farm bill legislation in the 110 th Congress, the House Agriculture Committee approved an amendment expressing a sense of the committee that farm manure is not to be considered a toxic waste. However, the amendment was not included in the reported version of the bill, reportedly because of jurisdictional issues, and was not included in the final legislation enacted in 2008 ( P.L. 110 - 246 ).
Some Members of Congress were critical of EPA's 2007 proposal to exempt routine animal waste air releases from CERCLA and EPCRA's reporting requirements, questioning the potential for harmful environmental and enforcement impacts of the proposal. At a September 2008 House Energy and Commerce subcommittee hearing where GAO's report was discussed (see page 5 ), several Members said that they were skeptical of EPA's authority to authorize a blanket exemption. Others suggested that an exemption for small farms, whose emissions are unlikely to cause environmental harm, would make sense. EPA and USDA witnesses supported the proposed rule, saying that the air release waiver would only affect reporting meant for emergency response situations, but would not affect requirements to report emissions of hazardous substances from other farm sources, or releases of hazardous substances from manure into soil, ground water, or surface water.
Legislation on this topic was introduced in the 112 th Congress. Companion bills, H.R. 2997 and S. 1729 , were similar to bills introduced in earlier Congresses. Both were intended to clarify that manure is not a "hazardous substance" or "pollutant or contaminant" under CERCLA and to remove emissions reporting liability under CERCLA and EPCRA. Supporters of these bills seek to block EPA from revising the 2008 exemption rule so as to require reporting of releases. A House Energy and Commerce subcommittee held a hearing on H.R. 2997 in June 2012. At that hearing, an EPA witness said that the agency "has concerns with the broad impacts of H.R. 2997 ," which the witness described: 
The effect of the bill would be to prevent the EPA from using CERCLA response authorities to respond to releases to the environment when manure is the source of those hazardous substances, even if the release, for instances such as the failure of a large manure waste lagoon, presented a substantial danger to the public health and the environment. It would also prevent the Agency from issuing CERCLA abatement orders to require response to damaging releases.
No similar legislation has been introduced in the 113 th or 114 th Congresses.
section_title: Policy Issues
paragraphs: Supporters and opponents of legislation raised a number of arguments for and against a statutory exemption from CERCLA and EPCRA. For example, proponents of exemptions, representing the agriculture industry, especially livestock and poultry producers, said that animal manure has been safely used as a fertilizer and soil amendment by many cultures all over the world for centuries and thus should not be considered a hazardous substance. Opponents—including environmental activists, public health advocates, and state and local governments—agreed that when properly managed, manure has beneficial uses. CERCLA's reporting and cost recovery requirements do not threaten responsible operators who manage manure as a valuable fertilizer, they said. However, these groups said that when improperly managed and in the massive amounts produced at today's large feedlot operations, animal waste can release a number of polluting substances to the environment. Releases to surface water, groundwater, and the atmosphere may include nutrients, organic matter, solids, pathogens, volatile compounds, particulate matter, antibiotics, pesticides, hormones, gases that are associated with climate change (carbon dioxide and methane), and odor.
Proponents of the legislation have argued that neither CERCLA nor EPCRA was intended by Congress to apply to agriculture and that the pending legislation would simply clarify congressional intent. CERCLA exempts "normal application of fertilizer" from the definition of "release." Animal waste arguably was intended to be covered by this existing exemption, they said. Opponents responded that there is little firm evidence either way on this point, as there is limited legislative history concerning this language. The exemption for "normal application of fertilizer," enacted in CERCLA in 1980, applies to application of fertilizer on crops or cropland for beneficia l use, but does not mean dumping or disposal of larger amounts or concentrations than are beneficial to crops.
EPA has not issued guidance to interpret what constitutes "normal application of fertilizer," and the only court decision addressing this issue (the vacated 2003 City of Tulsa case discussed above) held that neither plaintiffs nor defendants in that case had presented evidence sufficient for a fact-based determination of what constitutes "normal application." Opponents of the legislation also argued that animal manure consists of a number of substances that are nutritional and pharmaceutical elements of the feed provided to animals (trace elements, antibiotics, nutrients), and releases are the result of inadequate waste disposal, not "naturally occurring" substances and activities.
Proponents argued that enforcement and regulatory mechanisms exist under the Clean Water Act (CWA) and other media-specific statutes, such as the Clean Air Act (CAA), making it unnecessary to rely on CERCLA or EPCRA for enforcement or remediation. In particular, both the Clean Water Act and Clean Air Act require that regulated facilities obtain permits that authorize discharges or emissions of pollutants. Enforcement of permit requirements has been an important tool for government and citizens to address environmental concerns of animal agriculture activities.
Opponents responded that enforcement under CERCLA fills critical gaps in these other environmental laws, because not all pollutants are covered by other laws. For example, releases of ammonia and hydrogen sulfide are listed under CERCLA but are not currently regulated as hazardous pollutants under the CAA. Clean Water Act AFO permits primarily address discharges of nutrients, but not other components of manure waste (e.g., trace elements, metals, pesticides, pathogens). Moreover, neither of these laws provides for recovery of costs for responding to or remediating releases, nor for natural resource injuries. Opponents also argued that, while "federally permitted releases" are exempt from CERCLA's reporting requirements, CWA and CAA permit requirements apply only to facilities that meet specified regulatory thresholds (for example, CWA permit rules apply to about 15,300 large AFOs, less than 6% of all AFOs in the United States).
Finally, proponents of the legislation argued that if animal manure is considered to be a hazardous substance under CERCLA, farm operations both large and small potentially could be exposed to costly liabilities and penalties. Opponents have noted that the purpose of release reporting is to keep federal, state, and local entities informed and to alert appropriate first responders of emergencies that might necessitate response, such as release of hazardous chemicals that could endanger public health in a community. The exemption proposed in legislation, they pointed out, would apply not only to CERCLA and EPCRA reporting requirements but also to other provisions (such as CERCLA's authority for federal cleanup of releases, cleanup liability, and liability for natural resource injuries).
According to states and some other interest groups, liability, which arises when manure is applied in amounts that exceed what is beneficial to support crops, is necessary to bring about improvements in waste handling practices of large AFOs. Enacting an exemption would severely hamper the ability of government to appropriately respond to releases of hazardous substances and pollution caused by an animal agriculture operation, they argued. On the issue of penalties, opponents noted that penalties are not available under CERCLA for removal or remedial actions (except for failure to comply with information gathering and access related to a response action), regardless of whether initiated by government or a private party. CERCLA does authorize civil penalties for violation of the Section 103 reporting requirements (up to $37,500 per day), but neither of the two key citizen suit cases decided thus far ( Sierra Club v. Tyson Foods, Inc. , and Sierra Club v. Seaboard Farms Inc. ) involved penalties for failure to report releases.
section_title: Conclusion
paragraphs: Issues concerning the applicability of CERCLA and EPCRA to animal agriculture activities have been controversial and have drawn considerable attention. Bills introduced in Congress on several occasions to clarify that manure is not a "hazardous substance" or "pollutant or contaminant" under CERCLA and to remove emissions reporting liability under CERCLA and EPCRA gained support, but none was enacted. They also drew opposition from environmental advocacy groups and state and local governments. The Bush Administration did not present an official position on the legislation. The Obama Administration's views on the issue were reflected in EPA's announced intention to reconsider the 2008 rule that exempts air releases of hazardous substances from animal waste at farms from CERCLA and most EPCRA reporting—although the agency has taken no action to repeal or modify the rule—and in opposition to H.R. 2997 in the 112 th Congress.