September 1, 2006- Will poultry growers need to have their local emergency responders on speed dial so they can report ammonia releases of over 100 pounds per day from their farms? Will integrators and growers log more court time than Perry Mason defending themselves against lawsuits targeting “hazardous” compounds, such as phosphorous and arsenic, in litter spread on their fields? Could farmers be required to take remedial action to lower the phosphorous levels of soils on which they have spread litter? Each of these questions may seem absurd to people involved in agriculture on a daily basis, but courts in this country are entertaining questions like these today, and very soon the answer to each of these questions may be yes.
Environmental activist groups, the City of Waco, Texas, and the Oklahoma Attorney General are attempting to use the Emergency Planning and Community Right-To-Know Act (EPCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in ways that Congress never intended. Poultry industry trade groups like the National Chicken Council (NCC), National Turkey Federation (NTF), United Egg Producers (UEP) and the U.S. Poultry & Egg Association are working together with other animal agriculture organizations to try and bring some sanity back to environmental regulation of farms.
According to EPA’s website, “EPCRA was passed in response to concerns regarding the environmental and safety hazards posed by the storage and handling of toxic chemicals. These concerns were triggered by the disaster in Bhopal, India, in which more than 2,000 people suffered death or serious injury from the accidental release of methyl isocyanate.” The legislation that created EPCRA creates a right-to-know for communities surrounding industrial facilities and requires that the industrial establishment provide “access to information on chemicals at individual facilities, their uses, and releases into the environment.”
The activists’ recent attempts to apply CERCLA/EPCRA to the farm front began with ammonia. Ammonia has many industrial uses, including its use as a refrigerant in most poultry processing cooling and freezing systems, and releases of 100 pounds or more of ammonia in a 24-hour-period are reportable events according to CERCLA. Environmental activist groups contend that ammonia that volatilizes off of poultry manure is a hazard and that it should be covered under CERCLA. Ultimately, EPA devised the Air Consent Agreements (ACA) as a mechanism by which animal agriculture industries can protect themselves from lawsuits regarding past industry practices, but industry must also fund research regarding air emissions from its facilities and agree to mitigate these emissions if necessary.
John Starkey, vice president of environmental programs for U.S. Poultry & Egg Association, said, “The industry never had a problem with the research. The whole problem many had with the ACA is the consent part of the agreement and the implication that you have violated the law. Using the historical interpretation of the laws, the industry has not violated them.”
Starkey said, “The level of emissions coming out of poultry houses is not something that is going to cause health issues for people that live next to them. If it was a terrible health hazard, wouldn’t we see the effect on growers? Wouldn’t we see something like a significantly higher rate of respiratory infection in growers or catching crews? The purpose of the reporting requirements for ammonia release is to protect the health of neighbors from a sudden and accidental release, like at a processing plant if there is an ammonia leak because an emergency relief valve pops off. It is the concentrated cloud of gas that is harmful, not a barely detectable concentration of ammonia in a day’s worth of several poultry houses exhaust spread over several acres, which added together might equal 100 pounds of ammonia.
“The application of CERCLA/EPCRA at the farm level really started with activist groups suing hog farms in Missouri that had lagoon discharges, and later the Clinton-era EPA joined some of these lawsuits. Environmental groups still lead these efforts, but some government entities, like the City of Waco, Texas, and the Oklahoma Attorney General, have sued animal operations using CERCLA, with Waco targeting dairies and the Oklahoma A.G. targeting poultry integrators.”
For the first 25 years of CERCLA, there was no indication that animal manures should be viewed as hazardous substances under the regulations. The reversal of this view in a few courts is very alarming to poultry and animal agriculture in general. Poultry industry groups are now pushing at least three different efforts to try and return EPA to its former position, where manure is viewed as an organic fertilizer rather than as toxic waste.
“EPA has latitude to interpret the law, and generally speaking, the courts will show them deference,” Starkey said. Industry has been asking the EPA for guidance and clarification, but the EPA hasn’t come forward yet. Starkey said, “EPA could still come out with a regulatory interpretation that is consistent with how the regulations have been applied over the last 25 years, where litter was not viewed as a toxic waste, and this would take care of the problems that the industry is grappling with now. But, although courts usually show deference to EPA, they are not required to do so; getting an interpretation favorable to the poultry industry does not guarantee that these issues will go away. A Congressional clarification of the law’s intent would be a more certain solution.”
Changing the law is another effort that poultry industry groups are working on. House bill 4341 had 173 co-sponsors in early July, and several senators have agreed to sponsor this legislation in the senate. The legislation would clarify the intent of Congress, that it did not intend the incidental, low volume release of chemical constituents of manure or litter to be subject to these regulations. Basically the bill says that natural emissions, whether to the air, land or water, done as part of a normal agricultural operation are not subject to the release reporting and clean-up provisions of these laws.
Starkey said, “This would not allow doing things like dumping litter in a ditch which is a clear violation of the Clean Water Act with substantial penalties already in place, but the release of phosphorous as a nutrient by spreading litter on a field would be exempted. Similarly, the incidental release of ammonia from poultry housing emissions would not trigger the application of EPCRA/CERCLA enforcement.”
While support for HR 4341 has been strong – thanks in no small part to the efforts of NCC and NTF – it’s too early to predict the outcome of the effort. While getting the law clarified may be the most difficult remedy for the poultry industry to accomplish, it is the remedy which would provide the most protection now and in the future.
The third effort that the industry has made is the petition, which was filed with EPA on August 4, 2005; it asks that ammonia release from poultry houses be exempted from emergency release reporting requirements under CERCLA/EPCRA. This petition is specific to ammonia, so it provides no protection from the Oklahoma Attorney General lawsuits.
What happens regarding these three initiatives could have a dramatic impact on the future of the USA poultry industry. Starkey said, “I hope that common sense prevails, and for animal agriculture I think that it has to prevail on this overall CERCLA application that has taken place over the last few years. If we don’t get some sort of reasonable accommodation, these lawsuits are just going to continue, and the competitiveness of American animal agriculture is going to suffer.”