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 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-cv00329, 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 release reporting requirements, arguing that 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 While the agency has not formally responded to this petition, early 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. Further, EPA Administrator Stephen Johnson told congressional committees that the agency will propose a rule to exempt routine animal waste air releases from emergency notification requirements. He did not provide details on how broad a waiver might be proposed. While such a regulatory exemption might satisfy many agriculture industry groups, environmental advocates and others oppose the exemption. Some argue that an exemption is premature, since EPA is moving forward with research on emissions levels (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 have 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.7

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