Animal Waste and Hazardous Substances: Current Laws and Legislative Issues
Publication Date: April 2007
Publisher(s): Library of Congress. Congressional Research Service
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 activites, 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 in federal courts, while not specifically dealing with reporting violations, also have attracted attention, in part because they have raised the question of whether animal wastes that contain phosphorus are hazardous substances that can create cleanup and natural resource damage liability under Superfund. Two of these latter 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 (H.R. 4341 and S. 3681). Proponents of the legislation 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 enforcement under Superfund fills critical gaps not addressed in other environmental laws and 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 this legislation.