Order Code RL33691
Animal Waste and Hazardous Substances:
Current Laws and Legislative Issues
Updated January 25, 2008
Claudia Copeland
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division

---

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 recently has drawn congressional attention.
Both Superfund and EPCRA have reporting requirements that are triggered
when specified quantities of certain substances are released to the environment. In
addition, Superfund authorizes federal cleanup of releases of hazardous substances,
pollutants, or contaminants and imposes strict liability for cleanup and injuries to
natural resources from releases of hazardous substances.
Superfund and EPCRA include citizen suit provisions that have been used to sue
poultry producers and swine operations for violations of those laws. In two cases,
environmental advocates claimed that AFO operators had failed to report ammonia
emissions, in violation of Superfund and EPCRA. In both cases, federal courts
supported broad interpretation of key terms defining applicability of the laws’
reporting requirements. Three other cases not dealing with reporting violations also
have attracted attention, in part because of questions of whether animal wastes
contain hazardous substances that can create cleanup and natural resource damage
liability under Superfund. Two of these cases were settled; the third, brought by the
Oklahoma Attorney General against poultry operations in Arkansas, is pending.
These lawsuits testing the applicability of Superfund and EPCRA to poultry and
livestock operations have led to congressional interest in these issues. In the 109th
Congress, legislation was introduced that would have amended CERCLA to clarify
that manure is not a hazardous substance, pollutant, or contaminant under that act and
that the laws’ notification requirements would not apply to releases of manure.
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
responded 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. Congress did not act on the
legislation, but similar bills have been introduced in the 110th Congress (H.R. 1398
and S. 807). In December 2007, EPA proposed a rule that would exempt animal
waste emissions to the air from CERCLA and EPCRA reporting requirements.

---

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CERCLA and EPCRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Enforcement Against AFOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Proposed Reporting Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Congressional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Policy Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

---

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 farm-
level excess nitrogen (an imbalance between the quantity of manure nutrients
produced on the farm and assimilative capacity of the soil on that farm), and 89,000
had farm-level excess phosphorus.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
1 For additional information, see CRS Report RL33325, Livestock Marketing and
Competition Issues, by 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.

---

CRS-2
may be subject to requirements of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA, the Superfund law) and the Emergency
Planning and Community Right-to-Know Act (EPCRA).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 increasingly been receiving attention.
Congressional scrutiny in the form of legislative proposals and a House hearing in
the 109th Congress are discussed. Bills intended to exempt animal manure from the
requirements of Superfund and EPCRA were introduced in the 109th Congress, but
no legislation was enacted. Similar bills have been introduced in the 110th Congress
(H.R. 1398 and S. 807). 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-to-Know 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 (Section 104), and imposing
strict liability for cleanup and damages for injury to, destruction of, or loss of natural
resources resulting from releases of hazardous substances (Section 107). At issue
today is how the reporting requirements and other provisions of these laws apply to
poultry and livestock operations.
Superfund authorizes programs to remediate uncontrolled or abandoned
hazardous waste sites and assigns liability for the associated costs of cleanup.
Section 103(a) of CERCLA requires that the person in charge of a facility (as defined
in Section 101(9)) that releases a “reportable quantity” of certain hazardous
substances must provide notification of the release to the National Response Center.
EPCRA establishes requirements for emergency planning and notification for
storage and release of hazardous and toxic chemicals. Section 304(a)(1) of EPCRA
requires the owner or operator of a facility (as defined in Section 329(4)) to report to
3 For additional information, see CRS Report RL32948, Air Quality Issues and Animal
Agriculture: A Primer, by Claudia Copeland.
4 For additional information on Superfund and EPCRA, see CRS Report RL30798,
Environmental Laws: Summaries of Statutes Administered by the Environmental Protection
Agency, coordinated by Susan Fletcher, and CRS Report RL33426, Superfund:
Implementation and Selected Issues, by Jonathan Ramseur and Mark Reisch.

---

CRS-3
state and local authorities any releases greater than the reportable quantity of
substances deemed hazardous under Superfund or extremely hazardous under
EPCRA. Under Superfund, the term “release” (Section 101(22)) includes discharges
of substances to water and land and emissions to the air from “spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching,
dumping, or disposing into the environment.” Under EPCRA, the term “release”
(Section 329(8)) includes emitting any hazardous chemical or extremely hazardous
substance into the environment. Superfund excludes the “normal application of
fertilizer” from the definition of release, and EPCRA excludes from the definition of
hazardous chemicals any substance that is “used in routine agricultural operations or
is a fertilizer held for sale by a retailer to the ultimate customer.”
The CERCLA definition of “hazardous substance” (Section 101(14)) triggers
reporting under both laws. Among the reportable substances that may be released by
livestock facilities are hydrogen sulfide, ammonia, and phosphorus. The reportable
quantity (RQ) for both hydrogen sulfide and ammonia is 100 pounds per day, or 18.3
tons per year; the RQ for phosphorus is 1 pound per day. Section 109 of Superfund
and Section 325 of EPCRA authorize EPA to assess civil penalties for failure to
report releases of hazardous substances that equal or exceed their reportable
quantities (up to $27,500 per day under CERCLA and $27,500 per violation under
EPCRA).
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.
Both Superfund and EPCRA include citizen suit provisions that have been used
to sue poultry producers and swine operations for violations of the laws (Section 310
of CERCLA and Section 326 of EPCRA). In two cases, environmental advocates
claimed that AFO operators had failed to report ammonia emissions, putting them in
violation of Superfund and EPCRA. In both cases, federal courts supported broad
interpretation of key terms defining applicability of the laws’ reporting requirements.
In the first of these cases, a federal district court in Oklahoma initially ruled in
2002 that a farm’s individual barns, lagoons, and land application areas are separate
“facilities” for purposes of CERCLA reporting requirements, rather than aggregating

---

CRS-4
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 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-04-CA-118, filed
April 29, 2004), was a suit 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.
The third case, State of Oklahoma v. Tyson Foods, Inc. (N.D. Okla, No. 4:05-cv-
00329, filed June 13, 2005), is still pending. This suit, brought by the Oklahoma
Attorney General, asserts various claims based on the disposal of waste from 14
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 is not a
party in any of these cases.

---

CRS-5
poultry operations in the Illinois River Watershed. The state principally seeks its past
and present response costs and natural resource injuries under CERCLA due to
release of wastes from these facilities.
The net result of these lawsuits is growing concern by the agriculture
community that other legal actions will be brought and that the courts will continue
to hold that the Superfund and EPCRA reporting requirements and other provisions
apply to whole farm sites, thus potentially exposing more of these operations to
enforcement under federal law.
Proposed 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.6 In 2007, EPA formed an internal workgroup to review
information on animal waste as it relates to CERCLA and to possible exemptions
from emissions reporting, and in February, EPA Administrator Stephen Johnson told
congressional committees that the agency would propose a rule to exempt routine
animal waste air releases from emergency notification requirements.
On December 24, EPA issued a proposal in response to the poultry industry
petition.7 The proposal would exempt releases of hazardous substances to the air
(typically during digestion or decomposition) from animal waste at farms from the
notification requirements of CERCLA and EPCRA. The exemption would apply to
releases to the air from manure, digestive emissions, and urea, including animal
waste mixed with bedding, compost, and other specified materials. “Farm” is
defined in the proposal as an agricultural operation from which $1,000 or more of
agricultural products are sold annually (the same definition used by the Department
of Agriculture). EPA explained that the rule is justified because of the resource
burden to industry of complying with reporting requirements, since the agency cannot
foresee a situation where a response action would be taken as a result of notification
of releases of hazardous substances from animal waste at farms.8
The proposal is expected to draw significant public response during the
comment period, which closes March 27, 2008. While such a regulatory exemption
might satisfy many agriculture industry groups who seek a waiver or other means to
limit possible liability under CERCLA and EPCRA, environmental advocates and
6 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).
7 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).
8 Ibid., p. 73704.

---

CRS-6
others oppose the exemption, saying that emissions from animal wastes are not trivial
or benign. Critics note 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. Some
argue that an exemption is premature, since EPA is moving forward with research on
emissions levels, which could be undermined by a regulatory exemption (see CRS
Report RL32947, Air Quality Issues and Animal Agriculture: EPA’s Air Compliance
Agreement). State air quality officials have said that they oppose blanket regulatory
or legislative exemptions, and they recommended that if the agency considers any
action, it should only be a narrow exemption, such as one based on a size threshold
for farms.9
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.10
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.11
Also in 2004, some in Congress considered proposing legislation that would
amend the definition of “release” in Superfund (Section 101(22); 42 U.S.C.
§9601(22)) to clarify that the reporting requirements do not apply to releases from
biological processes in agricultural operations and to amend EPCRA to exclude
releases of hazardous chemicals produced through biological processes in routine
agricultural operations. For some time, there were indications that an amendment
9 National Association of Clean Air Agencies, letter to the Honorable Barbara Boxer,
chairman, Senate Environment and Public Works Committee, March 20, 2007.
10 Senator Blanche L. Lincoln et al., letter to Michael Leavitt, EPA Administrator, March
12, 2004.
11 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.

---

CRS-7
containing these statutory changes would be offered during debate on FY2005
consolidated appropriations legislation, but this did not occur.12
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.13 The House and Senate gave final approval to H.R.
2744 in November 2005 (P.L. 109-97), without the language that Senate conferees
had proposed.
Also in November 2005, legislation was introduced that would amend CERCLA
to clarify that manure is not a hazardous substance, pollutant, or contaminant under
that act and that CERCLA’s notification requirements would not apply to releases of
manure (H.R. 4341). The bill was similar to the legislative language that Senator
Craig had proposed to conferees as a provision of the FY2006 Agriculture
appropriations bill with a broad definition of “manure” that includes, for example,
bedding commingled with animal waste.
H.R. 4341 was introduced the same day that a House Energy and Commerce
subcommittee held a hearing on animal agriculture and Superfund. The
Subcommittee on Environment and Hazardous Materials heard from agriculture
industry witnesses who urged Congress to provide policy direction on the issue that
has developed as a result of recent and potential litigation. Other witnesses testified
that the reporting and notification requirements of Superfund and EPCRA provide
a safety net for making information on releases available to government and citizens,
and that other environmental laws, such as the Clean Air Act, cannot function in that
manner. An EPA witness said that the agency is considering ways to reduce the
paperwork burdens for large AFOs to report their emissions, but has not yet
formalized a proposal. Similar legislation was introduced in the Senate (S. 3681).
No further action occurred on either bill. Similar legislation has been introduced in
the 110th Congress (H.R. 1398 and S. 807).
12 “Spending Bill Excludes Proposal for Farms; Craig Plans Separate Legislation Next
Year,” Daily Environment Report, November 23, 2004, p. A-10.
13 For information, see CRS Report RL32947, Air Quality Issues and Animal Agriculture:
EPA’s Air Compliance Agreement, by Claudia Copeland.

---

CRS-8
During consideration of the 2007 farm bill legislation (H.R. 2419) in July 2007,
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. The Senate version of the legislation (S. 2302) has no similar
provision; it does include a study on bioenergy operations, to describe potential
economic issues associated with animal manure used in normal agricultural
operations and as a feedstock in energy production (section 10307).
Policy Issues
Supporters and opponents of the 109th Congress and 110th Congress legislation
have raised a number of arguments for and against the proposals. For example,
proponents of the exemption proposed in these bills, representing the agriculture
industry, especially livestock and poultry producers, say that animal manure has been
safely used as a fertilizer and soil amendment by many cultures all over the world for
centuries and thus should not be considered a hazardous substance. Opponents —
including environmental activists, public health advocates, and state and local
governments — agree that when properly managed, manure has beneficial uses.
Superfund’s reporting and cost recovery requirements do not threaten responsible
operators who manage manure as a valuable fertilizer, they say. However, these
groups say that when improperly managed and in the massive amounts produced at
today’s large feedlot operations, animal waste can release a number of polluting
substances to the environment. Releases to surface water, groundwater, and the
atmosphere may include nutrients, organic matter, solids, pathogens, volatile
compounds, particulate matter, antibiotics, pesticides, hormones, gases that are
associated with climate change (carbon dioxide and methane), and odor.
Proponents of the legislation argue that neither Superfund nor EPCRA was
intended by Congress to apply to agriculture and that the pending legislation would
simply clarify congressional intent. CERCLA exempts “normal application of
fertilizer” from the definition of “release” and also exempts releases of “naturally
occurring organic substances.” Animal waste arguably was intended to be covered
by these existing exemptions, they say. Opponents respond that there is little firm
evidence either way on this point, as there is limited legislative history concerning
this language. The exemption for “normal application of fertilizer,” enacted in
CERCLA in 1980, applies to application of fertilizer on crops or cropland for
beneficial use, but does not mean dumping or disposal of larger amounts or
concentrations than are beneficial to crops.14
EPA has not issued guidance to interpret what constitutes “normal application
of fertilizer,” and the only court decision so far addressing this issue (the vacated
2003 City of Tulsa case discussed above) held that neither plaintiffs nor defendants
in that case had presented evidence sufficient for a fact-based determination of what
constitutes “normal application.” Opponents of the legislation also argue that animal
14 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.

---

CRS-9
manure consists of a number of substances that are nutritional and pharmaceutical
elements of the feed provided to animals (trace elements, antibiotics, nutrients), and
releases are the result of inadequate waste disposal, not “naturally occurring”
substances and activities.
Proponents argue that enforcement and regulatory mechanisms exist under the
Clean Water Act (CWA) and other media-specific statutes, such as the Clean Air Act
(CAA), making it unnecessary to rely on Superfund or EPCRA for enforcement or
remediation. In particular, both the Clean Water Act and Clean Air Act require that
regulated facilities obtain permits that authorize discharges or emissions of
pollutants. Enforcement of permit requirements has been an important tool for
government and citizens to address environmental concerns of animal agriculture
activities.
Opponents respond that enforcement under Superfund fills critical gaps in these
other environmental laws, because not all pollutants are covered by other laws. For
example, releases of ammonia and hydrogen sulfide are listed under CERCLA but
are not currently regulated as hazardous pollutants under the CAA. Clean Water Act
AFO permits primarily address discharges of nutrients, but not other components of
manure waste (e.g., trace elements, metals, pesticides, pathogens). Moreover, neither
of these laws provides for recovery of costs for responding to or remediating releases,
nor for natural resource injuries. Opponents also argue that, while “federally
permitted releases” are exempt from CERCLA’s reporting requirements, CWA and
CAA permit requirements apply only to facilities that meet specified regulatory
thresholds (for example, CWA permit rules apply to about 14,000 large AFOs, less
than 6% of all AFOs in the United States).15
Finally, proponents of the legislation argue that if animal manure is considered
to be a hazardous substance under Superfund, farm operations both large and small
potentially could be exposed to costly liabilities and penalties. Opponents note that
the purpose of release reporting is to keep federal, state, and local entities informed
and to alert appropriate first responders of emergencies that might necessitate
response, such as release of hazardous chemicals that could endanger public health
in a community. The exemption proposed in pending legislation, they point out,
would apply not only to CERCLA and EPCRA reporting requirements but also to
other provisions (such as Superfund’s authority for federal cleanup of releases,
cleanup liability, and liability for natural resource injuries).
According to states and some other interest groups, liability, which arises when
manure is applied in amounts that exceed what is beneficial to support crops, is
necessary to bring about improvements in waste handling practices of large AFOs.
Enacting an exemption would severely hamper the ability of government to
appropriately respond to releases of hazardous substances and pollution caused by
an animal agriculture operation, they argue. On the issue of penalties, opponents note
15 U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination
System Permit Regulation and Effluent Limitation Guidelines and Standards for
Concentrated Animal Feeding Operations (CAFOs); Final Rule,” 68 Federal Register 7179,
February 12, 2003.

---

CRS-10
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 $27,500 per day), but neither of the two key citizen suit cases
decided thus far (Sierra Club v. Tyson Foods, Inc., and Sierra Club v. Seaboard
Farms Inc.) involved penalties for failure to report releases.
Conclusion
Issues concerning the applicability of Superfund and EPCRA to animal
agriculture activities have been controversial and have drawn considerable attention.
Bills in the 109th Congress gained much support (when the 109th Congress adjourned
in December 2006, H.R. 4341 had 191 co-sponsors, and S. 3681 had 35 co-sponsors),
but were not enacted. They also drew opposition from environmental advocacy
groups and state and local governments. The Bush Administration did not present
an official position on the legislation. Continuing interest in the issue is evident from
the fact that similar legislation has been introduced in the 110th Congress.

---