Jennifer Kuntz

April 5, 2008

On March 27, 2008, Earthjustice presented the United States Environmental Protection Agency ("EPA") with formal comments regarding the EPA's proposal to exempt Animal Feeding Operations ("AFOs") from reporting the release of hazardous substances from animal waste under both the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") and Emergency Reporting and Community Right-to-know Act ("EPCRA"). Earthjustice filed the comments on behalf of family farmers and environmental advocates.

Congress enacted CERCLA to address past disposal of chemical waste, which resulted in serious health and pollution problems during the 1970s and 1980s. The passage of CERCLA combated dangerous spills and disposal through a "comprehensive uniform system of notification, emergency and governmental response, enforcement, and liability assessment." As part of the system enacted by Congress, CERCLA mandated that all releases of hazardous substances at or above the reportable quantity, be reported to the federal government. Likewise, EPCRA required the facilities releasing the hazardous substances, at or above the reportable quantity, notify state and local authorities, in addition to the federal government. Jointly, CERCLA and EPCRA provided a uniform system for the multi-levels of government to respond to the release of hazardous substances and notify the public of these contaminants.

The impetus for the proposed AFOs exemption came from pressure on the EPA by agricultural lobbyists including the National Chicken Council and the U.S. Poultry and Egg Associations. The result of the lobbying efforts by these groups is that large factory farms will be exempt from reporting the hazardous release of ammonia, hydrogen sulfide, nitrous oxide, and other hazardous substances.

Considering the shift from small-scale family farming operations to industrial farms, resulting in a higher animal density, the concentration of unreported hazardous air pollutants will continue to increase. The result of large quantities of animal waste produced in small vicinities is both pollution and severe health risks. In particular, the release of the hazardous substances is linked to respiratory illness, lung inflammation, asthma, and in extreme cases: death. However, in the absence of the reporting requirements, communities will be unaware of either risk.

In the official comment submitted by Earthjustice, the non-profit public interest law firm argues that the EPA's proposed exemption violates CERCLA and EPCRA. In support of their position, Earthjustice asserts the following: 1) the EPA cannot create exemptions beyond those provided by Congress; 2) there is no legal reason for disregarding the plain meaning of the CERCLA/EPCRA statutes; and 3) the exemptions are contrary to the primary purposes of CERCLA and EPCRA. In the past, both CERCLA and EPCRA have been influential in creating accountability, disseminating public information, and mitigating the release of harmful pollutants. The large-scale, yet concentrated AFOs are a significant source of the harmful pollutants that CERCLA and EPCRA were enacted to combat.

The EPA has not had time to post a memorandum in response to Earthjustice's formal comments.

Sources:
Groups Oppose Pollution Reporting Exemption for Factory Farms, Earthjustice, March 27, 2008, http://www.earthjustice.org (last visited April 1, 2008).

42 U.S.C. §§ 9601–9675.

42 U.S.C. §§ 11001–11050.

Letter from Keri N. Powell, Staff Attorney, & George Torgun, Project Attorney, Earthjustice, to U.S. Environmental Protection Agency (March 27, 2008), http://www.earthjustice.org (commenting on docket ID No. EPA-HQ-SFUND-2007-0469 CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste at Animal Feeding Operations).