Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

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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 recently has drawn congressional attention.
Both Superfund and EPCRA have reporting requirements that are triggered when specified
quantities of certain substances are released to the environment. In addition, Superfund 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.
Superfund 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
Superfund 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 Superfund. Two of these cases were settled; the third, brought by the Oklahoma Attorney
General against poultry operations in Arkansas, is pending.
These lawsuits testing the applicability of Superfund and EPCRA to poultry and livestock ^th
operations have led to congressional interest in these issues. In the 110 Congress, legislation was
introduced that would have amended CERCLA to clarify that manure is not a hazardous
substance, pollutant, or contaminant under that act and that the laws’ notification requirements
would not apply to releases of manure (H.R. 1398 and S. 807). Proponents argue 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. In December 2008, EPA issued a rule to exempt animal waste
emissions to the air from most CERCLA and EPCRA reporting requirements.

Introduc tion ..................................................................................................................................... 1
CERCLA and EPCRA.....................................................................................................................2
Enforcement Against AFOs.............................................................................................................3
Reporting Exemption................................................................................................................4
Congressional Interest.....................................................................................................................6
Policy Issues....................................................................................................................................8
Conclusion ..................................................................................................................................... 10
Author Contact Information..........................................................................................................10

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 ¹
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 ²
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-³
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 Superfund and EPCRA, and enforcement actions under
these laws that have increasingly been receiving attention. Congressional scrutiny in the form of
legislative proposals and two House hearings are discussed. Bills intended to exempt animal ^th
manure from the requirements of Superfund and EPCRA were introduced in the 109 Congress.

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Similar bills were introduced in the 110^th Congress (H.R. 1398 and S. 807), but no legislation has
been enacted. Issues raised by the legislation are analyzed.

Both the Comprehensive Environmental Response, Compensation, and Liability Act (the
Superfund law, 42 U.S.C. §§9601-9675) and the Emergency Planning and Community Right-to-
Know Act (42 U.S.C. §§11001-11050) have reporting requirements that are triggered when ⁴
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 (Section 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
(Section 107). At issue today is how the reporting requirements and other provisions of these laws
apply to poultry and livestock operations.
Superfund 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 Section 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 Section 329(4)) to report to state and local authorities any releases greater
than the reportable quantity of substances deemed hazardous under Superfund or extremely
hazardous under EPCRA. Under Superfund, the term “release” (Section 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” (Section 329(8)) includes
emitting any hazardous chemical or extremely hazardous substance into the environment.
Superfund excludes the “normal application of fertilizer” from the definition of release, 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.”
The CERCLA definition of “hazardous substance” (Section 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 Superfund and Section 325 of EPCRA authorize EPA to assess

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civil penalties for failure to report releases of hazardous substances that equal or exceed their
reportable quantities (up to $27,500 per day under CERCLA and $27,500 per violation under
EPCRA).

EPA has enforced the Superfund 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, Superfund, 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.
Both Superfund and EPCRA include citizen suit provisions that have been used to sue poultry
producers and swine operations for violations of the laws (Section 310 of CERCLA and Section
326 of EPCRA). In two cases, environmental advocates claimed that AFO operators had failed to
report ammonia emissions, putting them in violation of Superfund and EPCRA. In both cases,
federal courts supported broad interpretation of key terms defining applicability of the laws’
reporting requirements.
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 Superfund’s reporting requirements would only apply if
emissions for each individual facility exceed 100 pounds per day. However, the district court’s ^th
ruling was reversed on appeal (Sierra Club v. Seaboard Farms Inc., 387 F.3d 1167 (10 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
Superfund and EPCRA reporting requirements (Sierra Club v. Tyson Foods, Inc., 299 F.Supp. 2d
693 (W.D. Ky. 2003)). While Superfund 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 do 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 ⁵
under Superfund. 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 Superfund 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 by the city against 14 dairies alleging various causes
of action based on disposal of wastes from those operations. It was resolved by a settlement ⁶
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), is still pending. This suit, brought by the Oklahoma Attorney General, asserts various
claims based on the disposal of waste from 14 poultry operations in the Illinois River Watershed.
The state principally seeks its past and present response costs and natural resource injuries under
CERCLA due to release of wastes from these facilities.
The net result of these lawsuits is growing concern by the agriculture community that other legal
actions will be brought and that the courts will continue to hold that the Superfund and EPCRA
reporting requirements and other provisions apply to whole farm sites, thus potentially exposing
more of these operations to enforcement under federal law.
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 ⁷
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 in February, 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.

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In December 2007, EPA issued a proposal in response to the poultry industry petition.⁸ The
proposal would 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”
is 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 cannot foresee a situation where a response action would
be taken as a result of notification of releases of hazardous substances from animal waste at ⁹
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 is
premature, since EPA is moving forward with research on emissions levels, which could be
undermined by a regulatory exemption (see CRS Report RL32947, Air Quality Issues and Animal
Agriculture: EPA’s Air Compliance Agreement). State air quality officials opposed blanket
regulatory or legislative exemptions, and they recommended that if the agency considers any ¹⁰
action, it should only be a narrow exemption, such as one based on a size threshold for farms.
In December 2008, EPA finalized the CERCLA/EPCRA administrative reporting exemption with ¹¹
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. As proposed, 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 ¹²
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 the CERCLA and EPCRA do not authorize
administrative exemptions for specific industries. A coalition of environmental advocates

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challenged the rule in federal court (Waterkeeper Alliance v. EPA, D.C. Cir., No. 09-1017, January

15, 2009).

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 ¹³
these pollutants.”

The court cases testing the applicability of Superfund and EPCRA to poultry and livestock
operations have led to congressional interest in these issues. In March 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 ¹⁴
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.
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^deci^sⁱ^on^s^,^aⁿ^{d i}ⁿ^adequ^a^t^e^s^cⁱ^eⁿ^tⁱ^fⁱ^cⁱⁿ^f^o^r^m^atⁱ^oⁿ^{are creat}ⁱⁿ^{g con}^f^usⁱ^oⁿ^about^t^h^{e e}^x^t^eⁿ^t^t^o
^w^h^ic^h^r^e^p^o^r^tin^g^r^e^q^u^ir^e^m^eⁿ^tsⁱⁿ^[^C^ER^C^L^A^]^an^d^[^E^P^CRA^]^c^o^v^e^r^em^issⁱ^oⁿ^s^f^r^o^m^p^o^u^ltr^y^,
^d^a^ir^y^,^o^r^liv^esto^ck^o^p^e^r^a^tioⁿ^s^{. P}^r^o^d^u^cer^s^w^aⁿ^t^to^m^{eet th}^eir^en^vⁱ^r^oⁿ^m^eⁿ^{tal o}^b^lig^at^ioⁿ^s^b^u^t
ⁿ^{eed clarif}^icatioⁿ^f^r^o^m^t^h^{e En}^vironm^eⁿ^{tal P}^r^otection^Ag^en^cy^oⁿ^w^h^e^t^h^e^r^t^h^e^s^e^l^a^w^s^a^p^p^l^y^t^o
^th^eir^o^p^e^r^a^tioⁿ^s^{. T}^h^{e co}^m^m^itt^{ee b}^e^liev^e^{s th}^a^t^an^e^x^p^e^d^itio^u^s^r^e^so^lu^tioⁿ^o^f^th^is^m^a^tter^is¹⁵
^w^a^rran^t^ed.
Also in 2004, some in Congress considered proposing legislation that would amend the definition
of “release” in Superfund (Section 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. For some time, there were indications that an amendment

¹³^U^.^{S. G}^o^v^e^rnm^e^nt^A^c^c^ounta^b^ility^O^f^fⁱ^c^e^,^“^C^onc^eⁿ^tra^t^e^d^Aⁿⁱ^m^a^l^Fe^e^d^ing^O^p^e^r^a^tio^ns^{, E}^P^A^N^e^e^d^s^Mo^re^Inf^o^rm^a^tion
^a^{nd a}^Cle^a^r^ly^D^e^fⁱ^ne^{d Stra}^te^gy^to^P^r^ote^c^t^Aⁱ^{r a}^{nd W}^a^te^{r Q}^u^a^lity^f^r^om^P^o^l^l^utaⁿ^ts^of^Conc^e^rⁿ^,^”^Se^pte^m^be^{r 2008,}^G^A^O^-
^08-⁹⁴^{4, p.}⁷^.
¹⁴^Se^na^{tor B}^l^aⁿ^c^h^e^L^.^Lⁱ^nc^oln^e^t^a^l^.^,^le^tte^{r to}^Mic^h^a^e^l^L^e^a^v^{itt, E}^P^A^Admⁱ^nistra^{tor, Ma}^rc^h¹²^{, 2}⁰⁰⁴^.
¹⁵^{U.S. C}^ong^re^{ss, House}^Com^m^itte^e^{on A}^ppr^opria^ti^ons,^Re^por^t^ac^c^o^m^panyⁱ^{ng H}^.^R.²³^61,^D^e^par^tm^eⁿ^t^{of t}^h^e^Iⁿ^te^rⁱ^or^,
^Envⁱ^r^onm^eⁿ^t,^an^{d Re}^la^te^{d A}^g^eⁿ^cⁱ^e^s^Appr^o^p^rⁱ^at^io^{n Bill}^{, 2}⁰⁰⁶^,^H^.^R^e^{pt. 10}^9-⁸⁰^{, 10}⁹^th^Cong^.,¹^st^s^e^s^s^{., p. 8}⁷^.

containing these statutory changes would be offered during debate on FY2005 consolidated ¹⁶
appropriations legislation, but this did not occur.
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 Superfund 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 Superfund 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 ¹⁷
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 that would 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 Superfund. 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 Superfund 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 ^th
legislation was introduced in the 110 Congress (H.R. 1398 and S. 807), but no further action
occurred on any of these bills.
During consideration of farm bill legislation in 2007 (H.R. 2419), 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

¹⁶^“^S^pe^nd^ing^B^ill^Ex^c^l^ude^s^P^r^op^os^a^l^f^o^r^Fa^r^m^s^;^C^r^aⁱ^g^P^l^aⁿ^s^Se^pa^r^a^te^L^e^gⁱ^s^l^a^{tion N}^e^x^t^Y^e^a^r^,”^Daily^En^vⁱ^ronmeⁿ^t
^Re^por^t^,^N^o^vem^b^er²³^,²⁰⁰⁴^,^p.^A^-¹⁰^.
¹⁷^Forⁱⁿ^f^o^r^m^a^{tion, s}^e^e^C^R^S^R^e^por^t^R^L³²⁹⁴^7,^{Air Qu}^ality^Issue^s^aⁿ^d^Anima^l^A^g^ric^u^lt^ure^:^{EPA’s Air C}^o^mpli^anc^e
^A^g^reemen^t^{, c}^oor^dina^te^{d by}^C^l^a^u^dⁱ^a^C^ope^laⁿ^d^.

of the bill, reportedly because of jurisdictional issues, and was not included in the final legislation
(P.L. 110-246).
Some Members of Congress have been critical of EPA’s proposal to exempt routine animal waste
air releases from CERCLA and EPCRA’s reporting requirements, questioning the potential for ¹⁸
harmful environmental and enforcement impacts of the proposal. At a September 24, 2008,
hearing where GAO’s recent report was discussed (see page ), several House Energy and
Commerce subcommittee members said that they are skeptical of the EPA’s authority for 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 proposal, 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.

Supporters and opponents of the 109^th Congress and 110^th Congress legislation raised a number of
arguments for and against the proposals. For example, proponents of the exemption proposed in
these bills, representing the agriculture industry, especially livestock and poultry producers, say
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—agree that when properly managed, manure has beneficial uses. Superfund’s
reporting and cost recovery requirements do not threaten responsible operators who manage
manure as a valuable fertilizer, they say. However, these groups say 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 argue that neither Superfund 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” and also
exempts releases of “naturally occurring organic substances.” Animal waste arguably was
intended to be covered by these existing exemptions, they say. Opponents respond 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 beneficial use, but does not mean ¹⁹
dumping or disposal of larger amounts or concentrations than are beneficial to crops.

¹⁸^L^e^tte^r^f^r^om^R^e^ps^{. J}^{ohn D}ⁱ^ng^e^ll,^A^l^be^r^t^Wy^{nn, H}^ilda^Solⁱ^s^to^Ste^p^he^{n L}^.^J^o^hⁿ^s^o^{n, E}^P^A^A^d^mⁱ^nis^t^r^a^t^o^r^,^Ma^r^c^h¹⁸^,
²⁰⁰^8.
¹⁹^U^.^{S. Se}^na^te^{, C}^o^m^m^itte^e^{on E}ⁿ^vⁱ^r^onm^eⁿ^{t a}^nd^Pub^lic^W^o^r^k^s^,^Envⁱ^ro^nmeⁿ^tal^Eme^r^ge^nc^y^Re^spoⁿ^se^Ac^t^,^Re^port^to
^Ac^c^o^m^pany^S.¹⁴⁸⁰^{, 9}⁶^th^Cong^.,²^nd^s^e^ss^{., S.R}^e^pt.⁹⁶^-⁸^48,^p.⁴⁶^.

EPA has not issued guidance to interpret what constitutes “normal application of fertilizer,” and
the only court decision so far 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 argue 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 argue 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 Superfund 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 respond that enforcement under Superfund 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 argue 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 ²⁰
permit rules apply to about 14,000 large AFOs, less than 6% of all AFOs in the United States).
Finally, proponents of the legislation argue that if animal manure is considered to be a hazardous
substance under Superfund, farm operations both large and small potentially could be exposed to
costly liabilities and penalties. Opponents note 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 pending legislation, they point out,
would apply not only to CERCLA and EPCRA reporting requirements but also to other
provisions (such as Superfund’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 argue. On the issue of penalties,
opponents note that penalties are not available under Superfund for removal or remedial actions
(except for failure to comply with information gathering and access related to a response action),

²⁰^{U.S. E}ⁿ^vⁱ^ronm^eⁿ^ta^l^P^r^o^t^e^c^tion^Ag^eⁿ^c^y^{, “}^N^a^tiona^{l Poll}^utaⁿ^{t Disc}^h^a^rg^e^Eli^m^ina^tion^Sy^ste^m^P^e^r^m^{it Re}^g^u^la^{tion a}ⁿ^d
^E^f^f^l^u^eⁿ^t^Lⁱ^mⁱ^t^a^tⁱ^oⁿ^G^uⁱ^d^elⁱⁿ^{es and}^S^t^and^a^rd^{s f}^o^{r Con}^cen^t^r^at^ed^Aⁿⁱ^m^al^F^eedⁱⁿ^{g Op}^eratⁱ^oⁿ^s^(CA^F^Os)^;^Fⁱⁿ^a^l^R^u^l^e^,^”⁶⁸
^Fe^de^{ral Re}^giste^r⁷¹^79,^Fe^br^ua^r^y^{12, 20}⁰³^.

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 $27,500 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.

Issues concerning the applicability of Superfund and EPCRA to animal agriculture activities have ^th
been controversial and have drawn considerable attention. Bills in the 109 Congress gained ^th
much support (in the 109 Congress, H.R. 4341 had 191 co-sponsors, and S. 3681 had 35 co-
sponsors), but were not 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. Continuing interest in the issue is evident from the fact that similar legislation has ^th
been introduced in the 110 Congress.
^C^l^au^di^{a C}^opel^aⁿ^d
^Sp^{ecialist i}ⁿ^Re^so^u^r^{ces a}ⁿ^d^En^vⁱ^r^oⁿ^m^eⁿ^{tal P}^o^lic^y
^ccopel^aⁿ^d^@^c^rs^.l^oc.g^ov^{, 7-}⁷²²⁷