Animal Waste and Hazardous Substances

May 21, 2012, 12:00 pm
Source: Congressional Research Service
 Topics:

Pigs in a Concentrated Feeding Operation. Source: NOAA

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.[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.

 Note: This article contains information that was originally published in the Congressional Research Service report Animal Waste and Hazardous Substances: Current Laws and Legislative Issues by Claudia Copeland. Topic editors and authors for the Encyclopedia of Earth may have edited its content or added new information. The use of information from the Congressional Research Service should not be construed as support for or endorsement by that organization for any new information added by EoE personnel, or for any editing of the original content.

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.

U.S. Environmental Laws

According to the U.S. Department of Agriculture (USDA), in 1997, 66,000 operations in the United States 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.

In the United States, federal environmental law does not regulate all agricultural activities. Some laws specifically exempt agriculture from regulatory provisions, and others are structured so that farms escape most, if not all, of the regulatory impact. Still, certain large animal feeding operations (AFOs) where animals are kept and raised in confinement are subject to environmental regulation. The primary regulatory focus on environmental impacts has been on protecting water resources and has occurred under the Clean Water Act. In addition, facilities that emit large quantities of air pollutants may be regulated under the Clean Air Act. Some livestock operations also may be subject to requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, the Superfund law) and the Emergency Planning and Community Right-to-Know Act (EPCRA).[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.

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.

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 and 110th Congresses, 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.

In December 2008, EPA issued a rule to exempt animal waste emissions to the air from most CERCLA and EPCRA reporting requirements. The Obama Administration has told a federal court that it intends to revise the rule, which has been challenged by environmental groups and some in industry.

Comprehensive Environmental Response, Compensation, and Liability Act and  Emergency Planning and Community Right-to-Know Act

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 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 Animal Feeding Operations

EPA has enforced the Superfund and EPCRA reporting requirements against AFO release of hazardous pollutants in two separate cases. The first involved the nation’s second largest pork producer, Premium Standard Farms (PSF) and Continental Grain Company. In November 2001, EPA and the Department of Justice announced an agreement resolving numerous claims against PSF concerning principally the Clean Water Act, but also the Clean Air Act, Superfund, and EPCRA. More recently, in September 2006, the Department announced settlement of claims against Seaboard Foods — a large pork producer with more than 200 farms in Oklahoma, Kansas, Texas, and Colorado — and PIC USA, the former owner and operator of several Oklahoma farms now operated by Seaboard. Like the earlier PSF case, the government had brought complaints for violations of several environmental laws, including failure to comply with the release reporting requirements of CERCLA and EPCRA.

Both Superfund and EPCRA include citizen suit provisions that have been used to sue poultry producers and swine operations for violations of the laws (Section 310 of CERCLA and Section 326 of EPCRA). In two cases, environmental advocates claimed that AFO operators had failed to report ammonia emissions, putting them in violation of Superfund and EPCRA. In both cases, federal courts supported broad interpretation of key terms defining applicability of the laws’ reporting requirements.

In the first of these cases, a federal district court in Oklahoma initially ruled in 2002 that a farm’s individual barns, lagoons, and land application areas are separate “facilities” for purposes of CERCLA reporting requirements, rather than aggregating multiple emissions of pollutants across the entire site. This court held that Superfund’s reporting requirements would only apply if emissions for each individual facility exceed 100 pounds per day. However, the district court’s 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 poultry operations in the Illinois River Watershed. The state principally seeks its past and present response costs and natural resource injuries under CERCLA due to release of wastes from these facilities.

The net result of these lawsuits is growing concern by the agriculture community that other legal actions will be brought and that the courts will continue to hold that the Superfund and EPCRA reporting requirements and other provisions apply to whole farm sites, thus potentially exposing more of these operations to enforcement under federal law.

In 2005, a group of poultry producers petitioned EPA for an exemption from EPCRA and CERCLA emergency notification requirements for releases of ammonia, arguing that such releases from poultry growing operations pose little or no risk to public health, while reporting imposes an undue burden on the regulated community and government responders. In 2007, EPA formed an internal workgroup to review information on animal waste as it relates to CERCLA and to possible exemptions from emissions reporting, and in February, EPA Administrator Stephen Johnson told congressional committees that the agency would propose a rule to exempt routine animal waste air releases from emergency notification requirements.

Notes

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.
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.
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.
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.
9. ^ National Association of Clean Air Agencies, letter to the Honorable Barbara Boxer, chairman, Senate Environment and Public Works Committee, March 20, 2007.
10. ^ 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, GAO- 08-944, p. 7.
11. ^U.S. Environmental Protection Agency, “CERCLA/EPCRA Administrative Reporting Exemption for Air Releases,” 73 Federal Register 76948-76960, December 18, 2008.
12. ^ For additional information, see CRS Report RL31851, Animal Waste and Water Quality: EPA Regulation of Concentrated Animal Feeding Operations (CAFOs), by Claudia Copeland.
13.
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.
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.

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