CERCLA refers to the Comprehensive Environmental Response, Compensation, and Liability Act. Also called "Superfund," CERCLA works to regulate the release and cleanup of toxins and hazards into the environment. CERCLA imposes a number of obligations, including reporting requirements triggered by the release of certain quantities of hazardous waste into the environment. While there has been some controversy regarding exactly how CERCLA and these reporting requirements apply to the agriculture industry, it is clear that CERCLA does have implications for both ranching and farming activities.
CERCLA Requirements for Farmers and Ranches
CERLA requires that anyone responsible for an agriculture establishment or agribusiness report the release of prohibited hazardous substances when the amount of toxins being released exceeds threshold amounts (referred to as a "reportable quantity"). For the purposes of determining how much of a hazardous substance is released, courts (Sierra Club v. Seaboard Farms Inc., 387 F.3d 1167 (10th Cir. 2004)) have held that the farm or ranch as a whole, including all buildings, should be considered one "facility."
If that one facility releases toxins above the reportable quantity into the air, the soil or the water, then a report must be filed. However, an exemption exists to the release notification requirement for the use, release or storage of pesticides as long as those pesticides are registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). This means ranchers and farmers can apply pesticides in their normal course of business without triggering CERCLA reporting requirements, but that ranchers and farmers must be aware of what the reportable quantities are in order to comply with CERCLA.
Manure and CERCLA
While it is widely accepted that farms and ranchers who release large quantities of toxins should have to comply with CERCLA reporting requirements, there is far more controversy over one particular area of the farming and ranching business: manure and animal waste.
Common on both ranches and farms, manure contains a chemical called phosphorous that is often used to fertilize land, but which can also build up and contaminate the groundwater. Decomposing manure and other animal wastes also emit ammonia into the air, especially as the manure breaks down, contributing to air pollution. Manure may also overflow into and contaminate water supplies, either when applied to land or due to improper storage and disposal.
Because of the dangers of manure, most environmentalists argue that Congress intended for farmers and ranchers to report releases of toxins related to manure when above reportable quantities. Advocates of requiring manure reporting suggest that Congress did not intend for manure to be exempt because they didn't exempt it in the provisions exempting both natural gas and petroleum from the list of substances that would trigger reporting (42 U.S.C. § 9601(14)). They argue that because Congress did exempt the normal use of fertilizer (42 U.S.C. § 9601(22), only the use of manure as fertilizer should be exempt and not other releases related to manure. |
In 2007, the Environmental Protection Agency attempted to exempt manure releases from reporting requirements for farms or ranchers or others in the agricultural industry as long as they sold $1,000 or more in agricultural products each year. The EPA proposed to exempt all emissions from manure, animal urine or animal digestion of food. However, the Government Accountability Office indicated at the time that the EPA had not yet completed sufficient research on the potential dangers of releases from urine, manure or animal digestion to humans.
While the EPA did finalize their exemption in 2008, exempting smaller agricultural facilities (like many independent farmers and ranchers) from reporting while still maintaining reporting requirements for large facilities (defined as those requiring permits under the Clean Water Act), various environmental advocates have challenged this new exemption and the issue is being litigated.
Complying with CERCLA
Because the issue of CERCLA compliance by farmers and ranchers is a controversial and evolving area of law, it is always best to seek legal advice from a qualified environmental attorney. Compliance with CERCLA is essential to avoid significant legal consequences, including large fines and penalties, and your lawyer can help you to review both the current federal law as well as any applicable decisions made in your state to make a determination as to how CERCLA applies to you.