Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

Animal Waste and Hazardous Substances:

Current Laws and Legislative Issues

name redacted

Specialist in Resources and Environmental Policy

June 3, 2016

Congressional Research Service

7-....

www.crs.gov

RL33691

Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

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.

Congressional Research Service

Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

Contents

Introduction ..................................................................................................................................... 1

CERCLA and EPCRA ..................................................................................................................... 2

Enforcement Against AFOs ............................................................................................................. 3

Administrative Reporting Exemption ....................................................................................... 4

Congressional Interest ..................................................................................................................... 7

Policy Issues .................................................................................................................................... 9

Conclusion ..................................................................................................................................... 10

Contacts

Author Contact Information ........................................................................................................... 11

Congressional Research Service

Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

Introduction

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.1 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 farmlevel 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.2 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 Rightto-Know Act (EPCRA).3 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 109th Congress, including

in the 112th Congress (H.R. 2997 and S. 1729). Issues raised by the legislation are analyzed.

1

For additional information, see CRS Report RL33325, Livestock Marketing and Competition Issues, by (name

redacted) and (name redacted) .

2

U.S. Department of Agriculture, Natural Resources Conservation Service, “Manure Nutrients Relative to the Capacity

of Cropland and Pastureland to Assimilate Nutrients: Spatial and Temporal Trends for the United States,” Publication

no. nps00-579, December 2000, p. 85.

3

For additional information, see CRS Report RL32948, Air Quality Issues and Animal Agriculture: A Primer, by

(name redacted) .

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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

CERCLA and EPCRA

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 Rightto-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.4 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).

4

For additional information on CERCLA and EPCRA, see CRS Report RL30798, Environmental Laws: Summaries of

Major Statutes Administered by the Environmental Protection Agency, coordinated by (name redacted) , and CRS

Report RL33426, Superfund: Implementation and Selected Issues, by (name redacted)

.

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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

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.

Enforcement Against AFOs

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 [10th 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 10th 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.

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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

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.5 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-04CA-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-cv00329, 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 2010.6

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.

Administrative Reporting Exemption

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.7 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.

5

Unlike the citizen suit cases discussed above, these lawsuits do not address what is a “facility,” for purposes of

determining whether a release has occurred. EPA also was not a party in any of these cases.

6

Environmental advocacy groups also have brought lawsuits against agricultural operations under the Resource

Conservation and Recovery Act (RCRA), the federal law that governs the treatment, storage, and disposal of solid and

hazardous waste. For example, in February 2013 environmental groups challenged the waste management practices of

several dairies in Washington state. The lawsuits do not allege that manure is hazardous waste. Rather, they allege that

the dairies over-applied and improperly applied manure to their fields and allowed liquid manure to leak from lagoons,

thus qualifying as “solid waste” under RCRA. They seek to require the dairies to upgrade their manure storage

facilities. See, for example, Community Association for Restoration of the Environment and Center for Food Safety v.

Cow Palace, LLC (E.D. WA, No. 13-CV-3016-TOR, filed February 14, 2013).

7

In 1998, EPA granted an administrative exemption from release reporting requirements for certain radionuclide

releases. EPA cited authority in CERCLA sections 102(a), 103, and 115 for granting administrative reporting

exemptions where “releases of hazardous substances that pose little or no risk or to which a Federal response is

infeasible or inappropriate.” See 63 Federal Register 13461 (March 19, 1998).

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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

In December 2007, EPA issued a proposal in response to the poultry industry petition.8 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.9

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.10 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.11

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.”12

8

U.S. Environmental Protection Agency, “CERCLA/EPCRA Administration Reporting Exemption for Air Releases of

Hazardous Substances from Animal Waste,” 72 Federal Register 73700 (December 28, 2007).

9

Ibid., p. 73704.

10

See CRS Report RL32947, Air Quality Issues and Animal Agriculture: EPA’s Air Compliance Agreement, by

(name redacted) .

11

National Association of Clean Air Agencies, letter to the Honorable Barbara Boxer, chairman, Senate Environment

and Public Works Committee, March 20, 2007.

12

U.S. Government Accountability Office, “Concentrated Animal Feeding Operations, EPA Needs More Information

and a Clearly Defined Strategy to Protect Air and Water Quality from Pollutants of Concern,” September 2008, GAO08-944, p. 7.

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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

In December 2008, EPA finalized the CERCLA/EPCRA administrative reporting exemption with

some modifications to the original proposal.13 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),14 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.15 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.16

13

U.S. Environmental Protection Agency, “CERCLA/EPCRA Administrative Reporting Exemption for Air Releases,”

73 Federal Register 76948-76960, December 18, 2008.

14

For additional information, see CRS Report RL31851, Animal Waste and Water Quality: EPA Regulation of

Concentrated Animal Feeding Operations (CAFOs), by (name redacted) .

15

EPCRA and other environmental laws that include citizen suit provisions require that citizen suitors must send a

notice of intent to sue to appropriate persons at least 60 days before commencing an action. (EPCRA §326[d], 42

U.S.C. §11046[d]) See http://www.humanesociety.org/news/press_releases/2012/07/

hsus_intent_to_sue_pig_confinement_facilities_071112.html.

16

The Humane Society of the United States and Sound Rivers, Inc. v. The Hanor Company of Wisconsin, LLC, Case

(continued...)

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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

Congressional Interest

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.17 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.18

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.19 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.

(...continued)

No. 4:15-cv-00109-FL (E.D. NC).

17

Senator Blanche L. Lincoln et al., letter to Michael Leavitt, EPA Administrator, March 12, 2004.

18

U.S. Congress, House Committee on Appropriations, Report accompanying H.R. 2361, Department of the Interior,

Environment, and Related Agencies Appropriation Bill, 2006, H.Rept. 109-80, 109th Cong., 1st sess., p. 87.

19

For information, see CRS Report RL32947, Air Quality Issues and Animal Agriculture: EPA’s Air Compliance

Agreement, by (name redacted) .

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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

Also in November 2005, legislation was introduced in the 109th 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 110th 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 110th 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.20 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.21

Legislation on this topic was introduced in the 112th 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

20

Letter from Reps. John Dingell, Albert Wynn, Hilda Solis to Stephen L. Johnson, EPA Administrator, March 18,

2008.

21

U.S. Congress, House Committee on Energy and Commerce, Subcommittee on Environment and Hazardous

Materials, Hazardous Substance Releases and Reporting under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA) and the Emergency Planning and Community Right-to-Know Act

(EPCRA), 110th Cong., 2nd sess., September 28, 2008, Serial No. 110-151 (Washington: GPO, 2008).

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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

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. 22

No similar legislation has been introduced in the 113th or 114th Congresses.

Policy Issues

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 beneficial use, but does not mean dumping or disposal of larger amounts or concentrations

than are beneficial to crops.23

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),

22

Testimony of Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response, U.S. EPA,

before the Subcommittee on Environment and the Economy, House Committee on Energy and Commerce, June 27,

2012.

23

U.S. Senate, Committee on Environment and Public Works, Environmental Emergency Response Act, Report to

Accompany S. 1480, 96th Cong., 2nd sess., S.Rept. 96-848, p. 46.

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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

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.

Conclusion

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

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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

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 112th

Congress.

Author Contact Information

(name redacted)

Specialist in Resources and Environmental Policy

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

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