From Oklahoma Publishing Today
States, cities want protection for water
By Mike W. Ray
News Director
(LIN) A proposal to exempt animal manure from the so-called Superfund law is opposed by states and municipalities that need legal leverage to prevent large-scale animal production facilities from contaminating sources of drinking water.
That message was presented last week to the U.S. House Subcommittee on Environment and Hazardous Materials by an assistant attorney general, an assistant city manager, and an environmentalist.
Congress is considering a proposal to exempt animal manure from the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly known as "Superfund," a federal law enacted in December 1980 and amended in October 1986 to regulate hazardous wastes. Nine witnesses testified during the two-hour hearing.
The animal agriculture industry "should be held responsible for the release of hazardous substances … to the same extent that every other industry is held," said Assistant Oklahoma Atty. Gen. Kelly Burch, appearing before the subcommittee on behalf of Oklahoma Atty. Gen. Drew Edmondson.
Potential liability under CERCLA "is critical" to prevent dairies from "continuing to over-apply waste" to their disposal fields in central Texas, echoed Wiley Stem, assistant city manager of Waco.
CERCLA already provides an exemption for the normal application of fertilizer, Burch pointed out, "but it does not provide an exemption for massive disposal of animal waste far in excess of crop needs and the resulting releases of hazardous substances." Dairies in the Waco area "apply manure to their fields not for agronomic purposes, but rather as a means of waste disposal," Stem said.
Most animal feeding operations are not regulated by the Environmental Protection Agency under the federal Clean Water Act "and thus are not adequately addressed" by federal laws, Burch said. Most of the large-scale poultry operations in Oklahoma and Arkansas accused of contributing to pollution of Oklahoma's natural resources are not regulated under the Clean Water Act, she said. The majority of the Arkansas poultry operations "releasing hazardous substances into Oklahoma's waters" are not regulated by either the EPA or the agricultural agencies in either state, Burch said. Although the Arkansas Legislature passed legislation governing poultry operations in 2003, "the deadline for obtaining even a nutrient or poultry litter management plan has been extended until Jan. 1, 2007," Burch pointed out.
Consequently, she maintained, CERCLA "provides an important mechanism for the State of Oklahoma to respond to this interstate problem."
Despite assertions to the contrary, Burch said, exempting animal waste from CERCLA "would be a substantial change in the law" that would "severely limit the states' ability to appropriately respond to releases of hazardous substances and pollution caused by" the animal agriculture industry.
Edmondson contends that poultry production contributes to degradation of the Illinois River watershed in Oklahoma, which includes the river itself and a couple of its tributaries, the Barren Fork and Flint Creek. The Illinois River "is a noted recreational destination," and 22 public water supply systems "depend on the Illinois River watershed for clean water," Edmondson related.
The 1998 National Water Quality Inventory Report said the agricultural sector contributed to the impairment of 2.4 million lake acres and almost 2,000 estuarine square miles. Two years ago the EPA estimated that 48,000 of the 300,000 impaired miles of rivers and streams in the United States could be blamed on animal feeding operations. In the 2000 National Water Quality Inventory Report, the agricultural sector, including concentrated animal feeding operations (CAFO), was identified as the leading contributor of pollutants "to identified water quality impairments in the nation's rivers and streams, lakes, ponds, and reservoirs."
The Environmental Protection Agency reports that 29 states "have specifically identified animal feeding operations as contributors to water quality impairments," Burch said.
Dr. Robert S. Lawrence, a professor of health policy and environmental health sciences at Johns Hopkins University, testified that surface waters and subterranean groundwater near large-scale poultry and swine operations have been found to be contaminated with nutrients such as ammonia, nitrogen and phosphate; arsenic, chloride, barium and copper; pesticides; antibiotic residues such as tetracycline; bacterial pathogens such as salmonella, and antibiotic-resistant bacteria.
CAFO-generated wastes "can pollute drinking water with nitrates in concentrations potentially fatal to infants," Lawrence said. The EPA estimated in 2002 that 1.3 million households had water supplies "with nitrate levels above the maximum contaminant level" of 10 milligrams per liter.
According to the federal government, excess phosphorus and nitrogen can cause eutrophication of water. Eutrophication can cause the growth of toxic organisms "that can be harmful to both humans and wildlife." Eutrophication can adversely affect drinking water by "clogging treatment plant intakes, producing objectionable tastes and odors, and increasing production of harmful chlorinated byproducts such as trihalomethanes, by reacting with chlorine used to disinfect drinking water." Eutrophication also affects the dissolved oxygen content of a water body "to levels insufficient to support fish and invertebrates."
Michele Merkel, senior legal counsel of the non-profit Environmental Integrity Project, noted that the City of Tulsa filed suit against some of the largest poultry producers in the nation. Tulsa maintained that the defendants' growers polluted Lakes Eucha and Spavinaw, from which Tulsa gets its drinking water, "by applying excess litter to land-application areas." A federal judge "ruled that phosphorus contained in the poultry litter in the form of phosphate is a hazardous substance under CERCLA," Merkel informed the congressional subcommittee. The suit was settled out of court with a mutual agreement.
The "once pristine" Illinois River watershed is "seriously impaired" because of "waste disposal practices of the poultry industry," Edmondson has charged. Bacteria, nutrients and metals "are reported to chronically exceed background levels in groundwater" in the Illinois River watershed because, according to one researcher, the "fractured limestone geology of the region allows a direct linkage from surface waters to groundwaters."
Furthermore, despite the volume of waste the poultry industry generates in western Arkansas and eastern Oklahoma, regardless of "the potency of that waste" and "the danger of bacterial or viral diseases being transmitted by the waste" from poultry to humans, and despite "the unsuitable geology in this region for such practices," the poultry industry "continues to dispose of hundreds of thousands of tons of untreated animal waste every year by spreading it onto the ground" throughout the Illinois River watershed," Burch testified.
As a result, Edmondson filed suit June 13 in federal district court in Tulsa against 14 poultry companies, including Tyson Foods, Cargill Inc. and Simmons Foods, for pollution of the river and of Tenkiller Lake, which it feeds. The complaint includes three counts based on federal law as well as state law claims.
CERCLA, said Merkel, "provides an essential safety net for protecting water supplies and … the air that we breathe."
"The amendment you are considering … is a blatant attempt by a multibillion-dollar industry to protect its practice of dumping waste in an environmentally damaging manner," Burch told the congressional subcommittee. "Hazardous substance disposal, far in excess of any crop needs, should not receive the blessing of Congress," she declared. "No other industry in the country has that kind of protection.
