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.8 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.9

Also in 2004, some in Congress considered proposing legislation that would amend the definition of "release" in Superfund (Section 101(22); 42 USC ยง9601(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 containing these statutory changes would be offered during debate on FY2005 consolidated appropriations legislation, but this did not occur.10

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.11 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).

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