McDonald: EPA continues to impact ag production

Cheyenne – “Agriculture is not only the backbone of communities in rural America, but provides jobs and opportunities across the entire U.S.,” said Ashley McDonald, deputy environmental counsel for the National Cattleman’s Beef Association (NCBA) in one of her columns. “However, one of the biggest obstacles facing the ranching industry is the regulations coming out of Washington.”

At the 2013 Wyoming Cattle Industry Convention and Trade Show in Cheyenne, held June 5-8, McDonald discussed the impacts that various EPA actions could have on agricultural operations. 

SPCC rule

The Spill Prevention, Control and Countermeasure (SPCC) rule requires operations to develop a SPCC plan if the farm has an above ground oil storage capacity greater than 1,320 gallons or buried fuel storage capacity of 42,000 gallons. The implementation date for this rule was May 10, but due to an appropriations rider, EPA cannot enforce the SPCC rule on farms until Oct. 1, 2013. 

“One big issue for the livestock industry is that the definition of oil includes feed ingredients, such as tallow and grease, that are used as feed additives,” said McDonald. “These count towards the aggregate fuel storage.”

Operators may self-certify their plan if the operation has above ground storage of 10,000 gallons or less and does not have a history of significant spills. A professional engineer is required for those that have storage capacity greater than 10,000 gallons or who have a history of significant spills, according to McDonald.

“What we have seen is that is just too low of a number,” McDonald stated, referencing the gallon exemption and self-certification limit. “We are working hard to ease the burden on producers by increasing this number.”

“These plans and the measures that have to be in place to meet the plan can cost $20,000 to $30,000,” McDonald continued. “It will be a very costly regulation if it is allowed to be imposed on the agricultural community.”

FUELS Act

Congress has been engaged on this issue and legislation has been introduced that would ease the burden of this regulation on producers. The legislation, called the FUELS (Farmers Undertake Environmental Land Stewardship) Act was introduced in both the House and Senate. If approved, this legislation would exempt operations that have 10,000 gallons or less above ground aggregate fuel storage capacity, with no history of spills, from certification.  

An amended version of the FUELS Act was recently passed as an amendment to the Water Resources Development Act in the Senate. The Senate-passed version would raise the exemption level, compared to the SPCC rule, to 6,000 gallons above ground storage capacity, subject to a study done by the U.S. Department of Agriculture and the EPA on the risk of discharge from agricultural operations. Based on this study, the exemption level could be reduced from no less than 2,500 gallons. The Senate-passed amendment would also raise the self-certification level to 20,000 gallons above-ground storage capacity. 

Another important provision in the Senate-passed amendment exempts any tank that holds livestock feed ingredients approved by the Food and Drug Administration from counting towards the aggregate fuel storage capacity. 

“While we hope to ultimately have a higher exemption level, the Senate-passed version of the FUELS Act is a vast improvement compared to the SPCC regulation that is scheduled to be enforced on Oct. 1 of this year,” McDonald stated.

EPA data releases 

Also of concern to NCBA, in February 2013, the EPA released information on 80,000 producers across the U.S. to organizations such as Earth Justice and the National Resource Defense Council. 

“Just because you are not a feeder does not mean your information was not included,” McDonald stated.

One example of non-feeders on the list included an operation that only had 12 horses on the property.

According to McDonald, information released included names, addresses, operation names, GPS coordinates, numbers and type of livestock, telephone numbers and email addresses among other information.

“The organizations received the information through a Freedom of Information Act (FOIA) request. EPA gathered the data from state agencies,” explained McDonald. “The livestock community was told after the request was closed and the information was sent out.”

In order to protect livestock producers, legislation has been offered in the Senate to prevent such releases from happening again. 

The legislation, the Grassley/Donnelly Amendment to the Senate Farm Bill, would have prohibited EPA from releasing personal information unless the agency aggregates information at county level or higher or the producer provides consent.

“Unfortunately, despite strong bipartisan support the amendment did not receive a vote before the Farm Bill was passed by the Senate,” she said. 

McDonald said that it will likely be submitted as stand alone legislation during this session.  

WOTUS guidance

In May 2011, the EPA and Corps of Engineers proposed a guidance document attempting to expand the definition of Waters of the United States (WOTUS). This change, devaluating the word “navigable,” would include more waters than are currently jurisdictional. 

Many problems are foreseen for livestock producers with this proposed change. The expansion will mean more permits, longer waiting periods and many other headaches for producers. 

NCBA believes the guidance document violates the Administrative Procedures Act (APA) because it did not go through the procedures outlined by the APA. The APA requires a public comment period, consideration of those comments and a response to those comments by the agency, among other things. These conditions have not been met by the EPA and the Corps.

“By issuing guidance instead of engaging in a notice and comment rulemaking, the agencies have attempted to short circuit the rulemaking process,” stated McDonald. 

The guidance has been sitting at the Office of Management and Budget since February 2012 and could be released in final form at any time. 

“We don’t know when this is going to come out,” says McDonald. “NCBA is preparing both economic and legal assessments to prepare for challenging the guidance in court.”

Barrasso takes a stand
Congress has been engaged in the Waters of the United States issue. 

Recently, Senator John Barrasso (R-Wyo.) reintroduced legislation entitled Preserving Waters of the United States Act, S. 1006, in the Senate. S. 1006 would prevent the guidance from being finalized and would also prevent its substance from being used as the basis for any rulemaking regarding the scope of the Federal Water Pollution Control Act. 

Kelsey Tramp is assistant editor of the Wyoming Livestock Roundup and can be reached at kelsey@wylr.net.