Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

Claudia Copeland
Specialist in Resources and Environmental Policy

The animal sector of agriculture has undergone major changes in the last several decades: organizational changes within the industry to enhance economic efficiency have resulted in larger confined production facilities that often are geographically concentrated. These changes, in turn, have given rise to concerns over the management of animal wastes and potential impacts on environmental quality.

Federal environmental law does not regulate all agricultural activities, but certain large animal feeding operations (AFOs) where animals are housed and raised in confinement are subject to regulation. The issue of applicability of these laws to livestock and poultry operations— especially the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, the Superfund law) and the Emergency Planning and Community Right-to-Know Act (EPCRA)—has been controversial and has drawn congressional attention.

Both Superfund and EPCRA have reporting requirements that are triggered when specified quantities of certain substances are released to the environment. In addition, Superfund authorizes federal cleanup of releases of hazardous substances, pollutants, or contaminants and imposes strict liability for cleanup and injuries to natural resources from releases of hazardous substances.

Superfund and EPCRA include citizen suit provisions that have been used to sue poultry producers and swine operations for violations of those laws. In two cases, environmental advocates claimed that AFO operators had failed to report ammonia emissions, in violation of Superfund and EPCRA. In both cases, federal courts supported broad interpretation of key terms defining applicability of the laws’ reporting requirements. Three other cases not dealing with reporting violations also have attracted attention, in part because of questions of whether animal wastes contain hazardous substances that can create cleanup and natural resource damage liability under Superfund.

In December 2008, EPA issued a rule to exempt animal waste emissions to the air from most CERCLA and EPCRA reporting requirements. Legal challenges to the rule followed. In October 2010, a federal court approved the government’s request to remand the rule to EPA for reconsideration and possible modification, but the agency has not yet proposed a new or revised rule.

The lawsuits testing the applicability of CERCLA and EPCRA to poultry and livestock operations and potential changes by EPA to the 2008 exemption rule have led to congressional interest in these issues. In the 112th Congress, legislation was introduced that would amend CERCLA to clarify that manure is not a hazardous substance, pollutant, or contaminant under that act and that the notification requirements of both laws would not apply to releases of manure (H.R. 2997 and S. 1729). Proponents have argued that Congress did not intend that either of these laws apply to agriculture and that enforcement and regulatory mechanisms under other laws are adequate to address environmental releases from animal agriculture. Opponents respond that enacting an exemption would severely hamper the ability of government and citizens to know about and respond to releases of hazardous substances caused by an animal agriculture operation. Similar legislation has not been introduced in the 113th Congress.


Date of Report: September 10, 2013
Number of Pages: 14
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Animal Waste and Water Quality: EPA’s Response to the Waterkeeper Alliance Court Decision on Regulation of CAFOs

Claudia Copeland
Specialist in Resources and Environmental Policy

In October 2008, the Environmental Protection Agency (EPA) issued a regulation to revise a 2003 Clean Water Act rule governing waste discharges from large confined animal feeding operations (CAFOs). This action was necessitated by a 2005 federal court decision (Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005)), resulting from challenges brought by agriculture industry groups and environmental advocacy groups, that vacated parts of the 2003 rule and remanded other parts to EPA for clarification.

The Clean Water Act prohibits the discharge of pollutants from any “point source” to waters of the United States unless authorized under a permit that is issued by EPA or a qualified state, and the act expressly defines CAFOs as point sources. Permits limiting the type and quantity of pollutants that can be discharged are derived from effluent limitation guidelines promulgated by EPA. The 2003 rule, updating rules that had been in place since the 1970s, revised the way in which discharges of manure, wastewater, and other process wastes from CAFOs are regulated, and it modified both the permitting requirements and applicable effluent limitation guidelines. It contained important first-time requirements: all CAFOs must apply for a discharge permit, and all CAFOs that apply such waste on land must develop and implement a nutrient management plan.

EPA’s 2008 revised regulation addressed those parts of the 2003 rule that were affected by the federal court’s ruling: (1) it eliminated the “duty to apply” requirement that all CAFOs must either apply for discharge permits or demonstrate that they have no potential to discharge, which was challenged by industry plaintiffs; (2) it added procedures regarding review of and public access to nutrient management plans, challenged by environmental groups; and (3) it modified aspects of the effluent limitation guidelines, also challenged by environmental groups. The final rule also modified a provision of the 2003 rule that the court upheld, clarifying the treatment of a regulatory exemption for agricultural stormwater discharges. CAFOs were to apply for permits and develop nutrient management plans by February 27, 2009. After that date, sources had three years to actually get permit coverage.

EPA’s efforts to revise the 2003 rule were controversial, particularly regarding the “duty to apply” for a permit and agricultural stormwater exemption provisions. Environmental groups strongly criticized EPA’s actions, arguing that the Waterkeeper Alliance court had left in place several means for the agency to accomplish much of its original permitting approach, but instead EPA chose not to do so. State permitting authorities also had a number of criticisms, focusing on key parts that they argued would greatly increase the administrative and resource burden on state regulators. Farm industry groups were generally supportive of the 2008 rule. Nevertheless, some of them brought a legal challenge. In March 2011, a federal court agreed with the industry petitioners and vacated a portion of the 2008 rule concerning the “duty to apply” requirement. Congress has shown some interest in CAFO issues in the past, primarily through oversight hearings before issuance of either the 2003 or 2008 rules.


Date of Report: September 10, 2013
Number of Pages: 21
Order Number: RL33656
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Climate Change Legislation in the 113th Congress

Jonathan L. Ramseur
Specialist in Environmental Policy

In the 113th Congress, Members have introduced multiple bills that include provisions that would directly or indirectly address climate change-related issues. In some cases, it is difficult to distinguish between direct and indirect climate change bills, because a specific bill or action may seek to achieve multiple objectives. The bills listed in this report include provisions that directly address climate change, as opposed to those that primarily address other issues (e.g., energy efficiency) but could have ancillary impacts on climate.

Observations about the climate change-related proposals in the 113th Congress include the following:

• as of the date of this report, one bill (S. 332) would attach a price to GHG emissions;

• a large number of the identified bills include provisions to encourage or require climate change adaptation activities; and

• a considerable number of proposals include provisions to prohibit federal agencies, particularly the Environmental Protection Agency, from taking action to require GHG emission reductions.


Date of Report: September 16, 2013
Number of Pages: 22
Order Number: R43230
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Federal Climate Change Funding from FY2008 to FY2014

Jane A. Leggett Specialist in Energy and Environmental Policy 
Richard K. Lattanzio Analyst in Environmental Policy 
Emily Bruner Research Associate

Direct federal funding to address global climate change totaled approximately $77 billion from FY2008 through FY2013. The large majority—more than 75%—has funded technology development and deployment, primarily through the Department of Energy (DOE). More than one-third of the identified funding was included in the American Recovery and Reinvestment Act of 2009 (P.L. 111-5). The President’s request for FY2014 contains $11.6 billion for federal expenditures on programs. In the request, 23% would be for science, 68% for energy technology development and deployment, 8% for international assistance, and 1% for adapting to climate change. The Office of Management and Budget (OMB) also reports that energy tax provisions that may reduce greenhouse gas (GHG) emissions would reduce tax revenues by $9.8 billion.

At least 18 federal agencies administer climate change-related activities, according to OMB. Federal policy on climate change has been built largely from the “bottom up” from a variety of existing programs and mandates, presidential initiatives, and congressionally directed activities; funding has largely reflected departmental missions and support for each activity. Recently, the Obama Administration, in the context of its Climate Action Plan announced in June 2013, outlined an overall strategy with programs, resources, and tax incentives in a cross-agency, intergovernmental initiative. The new Climate Action Plan and a recent OMB report required by Congress on federal funding for climate change activities outline four main components of the strategy:

• Climate and Global Change Research and Education

• Reducing Emissions through Clean Energy Investments and Standards

• International Leadership

• Climate Change Adaptation 

Possible Funding-Related Issues for Congress 

Some Members of Congress have expressed interest in how federal funding may reflect and enable the Obama Administration’s overall strategy, and priorities within it, to address climate change. Legislative issues regarding the federal funding of climate change activities may include the following:

• the sufficiency and alignment of federal resources to support a strategy to achieve long-term climate change policy goals;

• the demands of climate change adaptation programming for federal agencies, their programs, and resources;

• whether additional and predictable foreign aid resources may be provided to support actions by low-income countries to mitigate greenhouse gases or adapt to climate change;

• possible legislative proposals to restructure or improve collaboration among agencies regarding climate change activities;

• the incorporation of recommendations from evaluations (whether internal or external) to improve climate change programs; and


Date of Report: September 13, 2013
Number of Pages: 20
Order Number: R43227
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Keystone XL: Assessing the Proposed Pipeline's Impacts on Greenhouse Gas Emissions

Richard K. Lattanzio
Analyst in Environmental Policy

On June 25, 2013, President Obama announced a national “Climate Action Plan” to reduce emissions of carbon dioxide (CO2) and other greenhouse gases (GHG), as well as to encourage adaptation to expected climate change. During his speech, the President made reference to the proposed Keystone XL Pipeline and stated that an evaluation of the project’s impacts on climate change would factor into the U.S. State Department’s national interest determination. The State Department, in the March 2013 Draft Environmental Impact Statement (DEIS) for the Keystone XL Pipeline, reports estimates for both the direct (i.e., operational) and indirect (i.e., associated with crude oil production and use) GHG emissions that would be attributable to the proposed project. The DEIS finds that “the proposed Project would be responsible for incremental GHG emissions in the range of 0.07 ... 5.3 [million metric tons of CO2 equivalent] annually.” These emissions would represent an increase of 0.001%-0.08% over the domestic GHG emissions totals of 6,822 MMTCO2e in 2010. The State Department bases its findings on the following conclusions: (1) approval or denial of the proposed pipeline is unlikely to have a substantial impact on the rate of development in the oil sands, or on the amount of heavy crude oil refined in the Gulf Coast area in the long term, (2) denial of the proposed pipeline is offset entirely by the expansion of new rail and pipeline infrastructure in North America in the long term, and (3) the cumulative impact of the proposed pipeline would be the additional oil sands production that would become economical given the marginal cost savings afforded by the project over non- pipeline transport.

Many industry stakeholders, the Canadian and Albertan governments, and proponents of the proposed pipeline have generally supported the State Department’s findings. They contend that the demand for the oil sands resource, as well as the economic incentives for producers and the Canadian governments, is too significant to dampen production. However, the U.S. Environmental Protection Agency (EPA), among other stakeholders, has questioned several of the conclusions put forth by the DEIS and has recommended that the State Department revisit the analysis. Opponents of the project argue that the Keystone XL Pipeline may have greater impacts than projected in the DEIS if certain State Department assumptions were to differ, including projections for global crude oil markets, rail transport costs, new project costs, refinery inputs,  and carbon pricing policies.

In the forthcoming Final Environmental Impact Statement for the Keystone XL Pipeline (in preparation), the State Department may retain the GHG emissions analysis as detailed in the DEIS, or it may revisit it in light of comments provided by EPA and others. If the State Department revisits its analysis, it may look to model different scenarios for the incremental, or “net,” GHG emissions estimates based upon competing projections for North American crude oil transport infrastructure, Gulf Coast refinery capacity, and global crude oil markets (including U.S. tight oil) across the short, medium, and long term. The State Department must then determine if these emissions are considered “significant.” Members of Congress remain divided on the merits of the proposed project, as many have expressed support for the potential energy security and economic benefits, while others have expressed reservations about its potential environmental impacts. Though Congress, to date, has had no direct role in permitting the pipeline’s  construction, it may have oversight stemming from federal environmental statutes that govern the review. Further, Congress may seek to influence the State Department’s permitting process or to assert direct congressional authority over approval through new legislation.

Date-of-Report:-August 15, 2013
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