Superfund legislation was not intended to cover manure from egg producers—or from any livestock oper
March 31, 2008 by Chad Gregory
A lawsuit in Oklahoma is
threatening to extend the Comprehensive Environmental Recovery,
Compensation and Liability Act (CERCLA) and the Emergency Planning and
Community Right-to-Know Act (EPCRA) to discharges from animal
A lawsuit in Oklahoma is threatening to extend the Comprehensive Environmental Recovery, Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA) to discharges from animal agricultural operations.
If this case is successful, the effect could essentially be the outlawing of the use of manure-based fertilizer in the United States—truly an absurd result. Perhaps Oklahoma State Senator Rep Terry Hyman put it best. “At the rate things are going, we’ll have to slap diapers on every cow before we haul them down the road in a trailer,” Hyman was quoted as saying.
“There’s 5.4 million head of cattle and 3.2 million people in Oklahoma. If animal manure is hazardous waste, then the entire state is a hazardous-waste area,” he added.
As a result of this lawsuit and other initiatives by narrow special interest groups, egg farms, almost exclusively family-owned and family-operated enterprises, are facing growing concerns about potential liability for land application and/or natural emissions from manure produced in their operations from CERCLA, also known as “Superfund.” EPCRA is also a concern for the industry.
Over the past several years, activist groups and some state and local authorities have sought to extend CERCLA and EPCRA to animal agriculture operations, an interpretation that is clearly not supported by either science or legislative history. It is a classic situation of the law of unintended consequences, where actions—especially those of government—have effects that are unanticipated or unintended.
Due to these challenges, the US Congress now needs to confirm that it never intended to regulate manure under CERCLA or EPCRA. Without such clarification, every egg layer, poultry operation—every livestock operation in the entire country, for that matter—every agriculture field or organic farming operation on which manure or manure compost is spread for fertilizer could be subject to liability under both those acts.
Some background: CERCLA was created to provide for clean-up of the worst industrial chemical toxic waste dumps and spills such as Love Canal and Times Beach. To this end, Congress created the Superfund to tax industries that create or utilize substances (such as petrochemicals, inorganic raw chemicals and petroleum oil) that are used to make hazardous substances. Manure is clearly not among these materials.
EPCRA was adopted in the wake of the 1984 Union Carbide disaster in Bhopal, India to force the reporting of releases of hazardous chemicals in order to enable emergency responses from governmental authorities. In EPCRA, Congress specifically exempted “any substance to the extent that it is used in routine agricultural operations or is fertilizer held for sale by a retailer to the ultimate customer” from the definition of hazardous chemical.
By any reasonable interpretation, manure cannot be included in the above definition. Manure is a well-established natural fertilizer for many farms and is essential to the organic food industry.
The animal agriculture industry has been regulated appropriately for years under the Clean Water Act, Clean Air Act and various state laws to protect the environment. The Environmental Protection Agency’s (EPA) National Pollutant Discharge Elimination System (NPDES) regulations concerning Concentrated Animal Feeding Operations (CAFOs) require Nutrient Management Plans. Most state permitting authorities currently require some type of nutrient management planning for CAFOs.
The egg industry is participating with the EPA in a study (funded with almost $3 million from the egg industry) intended to clarify Clean Air Act requirements on poultry farms. Further state agricultural statutes and regulations cover clean water and air, soil conservation and other conditions.
The United Egg Producers is urging Congress to cosponsor legislation clarifying the congressional intent that manure was never meant to be covered by Superfund.
In the House, UEP is urging Members of Congress to cosponsor HR 4341 and in the Senate, urging Senators to cosponsor S 3681. The legislation does not alter any of the existing regulatory requirements that apply to these operations. The measure has the support of virtually every national livestock, poultry and family farm organization.
Congress must confirm that it never intended to regulate manure under CERCLA or EPCRA. Without such clarification, every livestock or poultry operation, or agricultural field or organic farming operation on which manure or manure compost is spread for fertilizer in this country could be subject to Superfund laws.
Chad Gregory is vice-president of Member Services of United Egg Producers.