Animal Waste and Hazardous Substances:
Current Laws and Legislative Issues
Claudia Copeland
Specialist in Resources and Environmental Policy
July 20, 2012September 10, 2013
Congressional Research Service
7-5700
www.crs.gov
RL33691
CRS Report for Congress
Prepared for Members and Committees of Congress
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 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.
In December 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 October
2010, a federal court approved the government’s request to remand the rule to EPA for
reconsideration and possible modification. EPA anticipates that it will propose, but the agency has not yet proposed a new or revised
rule in 2012.
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 has beenwas 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 arguehave 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 in the 113th Congress.
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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 ..................................................................................................................................... 11
Contacts
Author Contact Information........................................................................................................... 11
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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 Superfund and EPCRA, and enforcement actions under
these laws that have received attention. Congressional scrutiny in the form of legislative
proposals and oversight hearings is discussed. Bills intended to exempt animal manure from the
requirements of Superfund and EPCRA have been introduced several times since the 109th
1
For additional information, see CRS Report RL33325, Livestock Marketing and Competition Issues, by Renée
Johnson and Geoffrey S. Becker.
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
Claudia Copeland.
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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues
Congress, and similar bills have also been introducedincluding in the 112th Congress (H.R. 2997 and S.
1729). Issues raised by the
legislation are analyzed.
CERCLA and EPCRA
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-toKnow Act (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.
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 §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 Superfund or extremely hazardous
under EPCRA. Under Superfund, 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. 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” (§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 civil penalties for failure to
report releases of hazardous substances that equal or exceed their reportable quantities (up to
4
For additional information on Superfund and EPCRA, see CRS Report RL30798, Environmental Laws: Summaries of
Major Statutes Administered by the Environmental Protection Agency, coordinated by David M. Bearden, and CRS
Report RL33426, Superfund: Implementation and Selected Issues, by Jonathan L. Ramseur.
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$27,500 per day under CERCLA and $27,500 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, Superfund 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 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.
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 Superfund 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 Superfund’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
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
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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues
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.
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
under Superfund.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 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-04CA-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
agreement early in 2006.6
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,was brought by the Oklahoma Attorney General, asserts various
asserting
various claims based on the disposal of waste from 14 poultry operations in the Illinois River
Watershed.
The state principally seeks its past and presentsought 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 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.
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
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 iswas not a party in any of these cases.
6
In July 2008, a federal appeals court ruled in another case that animal waste discharges cannot be challenged under
the Resource Conservation and Recovery Act (RCRA) if the discharges are already regulated under a Clean Water Act
(CWA) permit. RCRA establishes a regulatory scheme for the treatment, disposal, and storage of hazardous and solid
wastes. The court ruled that RCRA does not apply to any activity or substance that is subject to the CWA. Coon v.
Willet Dairy, No. 07-3454-cv (CA 2, July 30, 2008Environmental 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).
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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues
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.
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
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).
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
Claudia Copeland.
11
National Association of Clean Air Agencies, letter to the Honorable Barbara Boxer, chairman, Senate Environment
and Public Works Committee, March 20, 2007.
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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues
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
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 anticipates that it will propose a new or revised rule in 2012. According to
does not have an announced schedule for proposing a new or modified
rule. According to press reports, EPA does not plan to directly regulate the emissions, but is
seeking to require their
reporting. In the meantime, the 2008 exemption rule is in effect.
Under the exemption rule, large CAFOs remain subject to EPCRA’s reporting requirements.
Facilities’ compliance with the rule has recently drawn attention: in July 2012, the Humane
Society Society
notified 51 swine facilities in Iowa, Oklahoma, and North Carolina that it intendsintended to sue
them them
over alleged unreported releases of ammonia.15 As of September 2013, no lawsuits have been
filed.
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.
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 Claudia Copeland.
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.
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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues
Congressional Interest
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
producers are uncertain about the laws’ requirements and are vulnerable to enforcement actions.16
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.17
Also in 2004, some in Congress considered proposing legislation that would amend the definition
of “release” in Superfund (§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 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
emissions.18 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.
16
Senator Blanche L. Lincoln et al., letter to Michael Leavitt, EPA Administrator, March 12, 2004.
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.
18
For information, see CRS Report RL32947, Air Quality Issues and Animal Agriculture: EPA’s Air Compliance
Agreement, by Claudia Copeland.
17
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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 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
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.19 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.20
Legislation on this topic has beenwas introduced in the 112th Congress. Companion bills, H.R. 2997
and S.
1729, arewere similar to bills introduced in earlier Congresses. Both arewere 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
19
Letter from Reps. John Dingell, Albert Wynn, Hilda Solis to Stephen L. Johnson, EPA Administrator, March 18,
2008.
20
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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House Energy and Commerce subcommittee held a hearing on H.R. 2997 on June 27, 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.21
In the 113th Congress, no similar legislation has been introduced.
Policy Issues
Supporters and opponents of legislation since the 109th Congress have raised a number of
arguments for and against a statutory exemption from CERCLA and EPCRA. For example,
proponents of the exemption proposed in these bills, 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. Superfund’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 argued 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 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.22
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
21
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.
22
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
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 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 responded 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 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 have argued 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 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 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 argued. On the issue of penalties,
opponents noted 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),
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.
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Conclusion
Issues concerning the applicability of Superfund 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
in the 109th Congress gained
much support, but none was enacted. They also drew opposition from environmental advocacy
groups groups
and state and local governments. The Bush Administration did not present an official
position on the legislation. Legislation has again been introduced in the 112th Congress (H.R.
2997 and S. 1729).
the legislation. The Obama Administration’s views on the issue are reflected in EPA’s currentanticipated
reconsideration of the 2008 rule that exempts air releases of hazardous substances from animal
waste at farms from CERCLA and most EPCRA reporting, and in opposition to H.R. 2997, as
expressed by an EPA witness at a House subcommittee hearing in June (see “Congressional
Interest” above) in the
112th Congress.
Author Contact Information
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
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