Cows spend Friday evening in a stockyard along Brady Street. Farmers are concerned the manure cows produce may be classified as hazardous waste and become a big obstacle to maintaining agricultural business. (Staff photo: Tony Bullocks)
By Marlena Hartz: CNJ staff writer
Anxious farmers have flung hopes on Congress to clarify an environmental law they fear has the potential to bankrupt them.
Sen. Pete Domenici, R.-N.M., is sponsoring a bill that would prevent manure from being classified as hazardous waste and exempt dairies and other livestock operations from being sued under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as the Superfund law.
According to the New Mexico Environment Department, manure itself doesn’t pose much of a problem; it is the inorganic compounds it contains, such as nitrogen and phosphorous that can be harmful to human health upon ingestion.
In 1980, Superfund was enacted as a way to clean up abandoned chemical dumps and allow injured parties to sue for damages, according to a University of Washington Superfund research program.
The law was used to pay for the cleanup of a playa lake in Clovis used by BNSF Railway for dumping hazardous waste for decades.
“The fear,” said Dairy Farmers of America spokesman Walter Bradley, “is that the farmer is going to be forced to comply with another set of regulations that was intended for manufacturers.”
Superfund lawsuits against agriculture industries in Oklahoma and Texas rattled local dairy farmers and spurred Domenici to sponsor the bill, according to Domenici’s deputy press secretary Matt Letourneau and Bradley.
“A lot of farms that are affected by these efforts to sue are dairies,” said Letourneau.
New Mexico has carved out a place on the national stage as the seventh largest milk-producing state in the nation. Its approximate 180 dairies have the largest herd sizes — 1,600 to 1,700 cattle — in the country, according to Domenici’s office.
Proponents of amending CERCLA argue that tight regulations under the Clean Air Act and Clean Water Act sufficiently prevent pollution from dairies and already impose fines for violations.
“We are real concerned,” said dairy farmer Alva Carter, who owns about 2,000 milking cows in Portales.
“We feel like we are being discriminated against,” he said. “We all have grandchildren,” he paused, “and we don’t need to be piling (on) more rules and regulations.”
In Oklahoma, Attorney General Drew Edmondson is leading a suit against 14 Arkansas-based poultry companies he believes have polluted Oklahoma’s scenic rivers. Edmondson contends phosphorous from chicken litter used as fertilizer has seeped in Oklahoma rivers, caused excessive algae blooms and sucked life-giving oxygen from the water.
Chemicals found in litter — such as nitrous oxide and ammonia — are chemicals noted as hazardous under the Superfund law, Edmondson said.
A similar suit in Waco, Texas, also sought to declare animal manure as a hazard under CERCLA. The Waco suit has been settled, but Edmondson’s is still pending.
Edmondson said only dairies that breach federal environmental standards should worry about the implications of Oklahoma’s suit.
“If (a dairy) is complying with (Environmental Protection Agency) regulations, this lawsuit should have no affect on them whatsoever,” said Edmondson, who expects the lawsuit to go to trial in early 2008.
According to the New Mexico Environment Department, no Superfund lawsuits have been filed against dairies in New Mexico. But “a number of dairies have violations for exceeding the New Mexico groundwater standard for nitrate,” according to NMED spokesperson Marissa Stone.
“That contamination,” she wrote in an e-mail to the Clovis News Journal, “results when nitrogen from wastewater storage lagoons or wastewater from dairies is applied to crops and seeps into groundwater.
“The vast majority of New Mexico dairy operators,” she added, “are responsible business people who are not trying to shirk their responsibilities. Therefore, any exemption should be unnecessary.”
New Mexico Environment Department officials paint Superfund as an important tool.
“The passage of (S.3681) would reduce options available to citizens and government agencies in addressing releases of hazardous substances,” Stone wrote.
But local dairies want to be freed from Superfund.
“If a court were to declare animal waste as hazardous, then anybody who deals with farm animals (could) be put out of business,” Bradley said.
“It’s one of those things — you don’t know where you are at with the law. This (amendment) helps take care of that,” said Chet Wyant, the president of EnviroCompliance Service, a company that helps some 50 dairies in the region comply with environmental laws.
According to Letourneau, Domenici intends to insert his CERCLA amendment into the Agricultural Appropriations Bill, which was expected to go to the Senate floor last week, but never did.
Lawmakers haven’t pinpointed a date for its return to the floor, Letourneau told the CNJ Thursday.
With 31 co-sponsors, almost a third of the Senate supports the bill, according to Farmers for Clean Air & Water, a lobbyist coalition formed by farmers and ranchers.
S. 3681 is a companion to a House bill introduced earlier this year.