B-133192, Mar 14, 1988, Office of General Counsel

B-133192, Mar 14, 1988, Office of General Counsel

MISCELLANEOUS TOPICS - Environment/Energy/Natural Resources - Hazardous Substances - Environmental Protection - Liability DIGEST: Under federal environmental statutes, the potential exists for farmers who have properly applied a pesticide to be required to undertake abatement-type actions, and incur the expenses thereof, in an emergency situation. See 42 U.S.C. Secs. 300i, 6973, 9606.

The Honorable Christopher S. (Kit) Bond United States Senate:

In your February 17 letter, jointly signed with Chairman Patrick Leahy and Ranking Minority Member Richard Lugar, you asked whether farmers may be liable, under federal environmental statutes, for the lawful use of a pesticide. More specifically, you question whether a farmer may be liable, under any circumstance, for damages or remedial action associated with the proper use of a pesticide product registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. Sec. 136 (1982).

We conclude that, under current law, the potential exists for farmers who have properly applied a pesticide to be required to undertake abatement- type actions, and incur the expenses thereof, in an emergency situation.

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Pub. L. No. 96-510, 94 Stat. 2767 (42 U.S.C. Secs. 9601-9675). CERCLA created a fund, commonly known as the "Superfund," to enable federal and state agencies to begin immediately cleaning up sites at which hazardous substances have been released. To replenish the fund and to impose the costs of the unsafe disposal of hazardous waste on responsible parties, CERCLA authorized government agencies to recover "response costs," clean-up costs and damages for injuries to natural resources, from these parties. 42 U.S.C. Sec. 9607.

Section 9607 of title 42, United States Code, the section of CERCLA dealing with liability, provides that neither the federal government nor states may recover "under the authority of this section for any response costs or damages resulting from the application of a pesticide product registered under FIFRA." 42 U.S.C. Sec. 9607(i). A similar exclusion for application of registered pesticides is not provided in the part of CERCLA dealing with abatement actions. "When the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance," the users of the substance or others who may be involved, including farmers, may be required to take actions, at their own expense, to abate the danger. 42 U.S.C. Sec. 9606(a).

In the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1628, Congress amended the abatement provision of CERCLA to provide that any person who takes any abatement action required under the section may petition the President for reimbursement from the fund for the reasonable costs of the action, plus interest. 42 U.S.C.A. Sec. 9606(b)(2)(A). If the petition is denied, the petitioner can file suit for reimbursement from the fund. 42 U.S.C. Sec. 9606(b)(2)(B). The statutory standard for permitting recovery, which favors those who can show that they exercised due care with respect to the substance involved, would seem to fit the situation of a farmer who applies an approved pesticide in accordance with label instructions.

In enacting SARA, Congress considered, but did not adopt, a proposal to prevent farmers lawfully using pesticides from being ordered under CERCLA to abate any resulting danger. The House Report explained the abatement authority in general, and this proposal, as follows:

Under section 9606, judicial proceedings may be brought to compel responsible parties to perform cleanup actions at a hazardous waste site. The Administrator also may issue administrative orders compelling such actions. Section 106 of the bill amends (42 U.S.C. Sec. 9606 CERCLA) to provide that these enforcement authorities do not apply with respect to any release or threatened release resulting from the normal application of a pesticide product registered under the Federal Insecticide, Fungicide and Rodenticide Act. However, nothing in this provision affects or modifies in any way the obligations or liability of any person under any other provision of state or Federal law for damages, injury or loss resulting from a release of any hazardous substances or for removal or remedial action."

H.R. Rep. No. 99-253(V) at 15, reprinted in 1986 U.S. Code Cong. & Ad. News 3138-39.

As enacted, however, SARA did not exclude pesticide use from the abatement authority. The conference report (H.R. Rep. No. 962, 99th Cong., 2d Sess. 315, reprinted in 1986 U.S. Code Cong. & Ad. News 3408) explained that, by deleting the House proposal that would have precluded farmers from having to take any abatement action; "the conferees do not intend to imply that the (section 9606) authority may or may not be used to require those who apply registered pesticides to undertake cleanup." This action in effect leaves open the possibility that, under the abatement authority of CERCLA, a farmer may be required to take response actions at his own expense, although, as discussed above, he may later be able to recover response costs through the petition process.

Farmers may also be liable for abatement-type actions associated with lawful pesticide use in emergency circumstances under section 1431 of the Safe Drinking Water Act, Pub. L. No. 93-523, 88 Stat. 1660 (1974), 42 U.S.C. Sec. 300i. This provision authorizes the Administrator of the Environmental Protection Agency (EPA) to require abatementtype actions in emergency situations which jeopardize the health of persons. The basis of a section 1431 action is the present existence of an imminent hazard, and in that situation, the Administrator of EPA may seek appropriate relief from any person "whose action or inaction requires prompt regulation to protect public health." H.R. Rep. No. 1185, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 6554, 6487. See United States v. Price, 523 F.Supp. 1055, 1074-75 (D. N.J. 1981). Under this provision of the Safe Drinking Water Act, farmers may be required to initiate abatement type actions in emergency circumstances. Unlike CERCLA, the Safe Drinking Water Act does not contain any provision which authorizes the refunding of costs through a petition process.

A similar emergency provision appears in section 7003 of the Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795 (1976), 42 U.S.C. Sec. 6973. EPA also has broad abatement type authority under the Clean Water Act, 33 U.S.C. Sec. 1321.

You also asked us to examine three Proposals to amend FIFRA in order to protect farmers from liability under federal environmental statutes. Two proposals were considered by the House of Representatives on September 19, 1986 (132 Cong. Rec. H7258), and October 16, 1986 (132 Cong. Rec. H11172). The third, S. 2035, 100th Congress, introduced on February 4, 1988, includes a similar provision.

As the previous discussion indicates, the environmental statutes distinguish between EPA's authority to impose financial liability (i.e., response costs or damages) on farmers and EPA's authority to require abatement-type remedial action in emergency circumstances. There is some uncertainty as to whether farmers would be protected, under any of the proposals as currently drafted, from both financial liability and the obligation to undertake abatement-type actions. In this regard, none of the proposals refers to "abatement" actions; rather, they are couched in terms of liability for "the costs of response" (the House proposals), and liability "arising from a release or threatened release of a pesticide into the environment" (the Senate proposal). While we recognize that explanatory legislative history could further clarify Congress' intent, the language of all three proposals, standing alone, is subject to interpretations which would give farmers less than absolute insulation from the consequences of pesticide application under federal environmental laws.

Moreover, if any of the proposals were enacted and farmers were required to undertake abatement action, it is not clear how farmers would recover their costs incurred in complying wire the abatement authorities under federal environmental statutes, with the exception of abatement actions under CERCLA. On this point, only CERCLA provides a means by which costs could be recovered.