EPA’s latest action targets emissions from cattle manure
In 2008, a lawsuit was filed against the Environmental Protection Agency (EPA) targeting a statute that exempted farmers and ranchers from reporting hazardous emissions released from animal waste.
On April 11, 2017, the D.C. Court of Appeals ruled against EPA, eliminating the reporting exemption for farms under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right to Know Act (EPCRA).
“Agriculture was exempted from having to report under CERCLA and EPCRA until now,” says National Cattlemen’s Beef Association Chief Environmental Counsel Scott Yager, noting the court’s decision means a mandate will be issued, forcing producers to report. “We’re expecting the mandate to be issued on Jan. 22.”
He continues, “We’ve delayed the mandates for some time, which has been helpful to producers and to help us build momentum, but we’re getting close to our deadlines now.”
Assuming the mandate is issued, any farm or ranch exceeding the reporting threshold is required to estimate and report their emissions to the U.S. Coast Guard and a regional EPA office.
Law origins
Originally, CERCLA and EPCRA were passed by Congress to report situations that create an acute environmental or public health threat, explains Yager, noting situations like factory explosions or overturned tankers transporting chemicals were envisioned when the law was written.
Farms and ranches were specifically exempt from reporting in the original law.
“Those same requirements are now going to be applied to farmers and ranchers for typical emissions from animals – the manure odor,” Yager explains. “The chemicals we’re talking about are ammonia and hydrogen sulfide. Environmental groups litigated the law to eliminate the ag exemption. They won last April.”
Reporting requirements
The regulatory thresholds for emissions of ammonia or hydrogen sulfide is 100 pounds per day per facility under CERCLA and EPCRA.
“What that comes down to in terms of head of cattle, looking at Texas A&M’s estimate, is 208 head,” Yager explains. “University of Nebraska estimates are slightly different, but it’s right around that number. EPA has traditionally regulated around 1,000 head.”
He continues, “Anyone who hits a threshold of 208 head, not limited to just those cattle in confinement, would be required to report hazardous emissions. This is a much broader impact than we’ve ever seen. Because of the breadth of requirements in CERCLA, we’re going to see a big impact in agriculture.”
Process
If the mandate is issued, reporting is a three-step process beginning with an initial report within 24 hours after the mandate is issued.
“For the first report, each producer will have to call the U.S. Coast Guard National Response Center (NRC) and tell them their name, the name of their operation and the city and state where they’re located. They will also have to tell the NRC they are emitting hydrogen sulfide and ammonia due to the natural breakdown of manure.”
Then, within 30 days, ranchers must submit a more detailed and technical written report to EPA, which includes their estimated upper and lower emissions bounds for hydrogen sulfide and ammonia and other technical information.
“One year after the mandate is issued, producers have to send a follow-up report with the same information from the written report, verifying a continuous and low-level emission,” Yager explains. “All three steps are required to satisfy reporting requirements.”
Questions
To date, Yager also emphasizes there are a lot of unanswered questions that come into play because the statutes were never meant to regulate agriculture.
“We don’t know how all the ins and outs will play out for agriculture,” Yager says. “We know CERCLA applies to more than feedlots, including cow/calf producers and others, but we don’t have direct answers to a lot of our questions.”
Yager poses questions including whether zoos and wildlife refuges, for example, will be required to report emissions, adding there are currently no answers to these questions.
Fixing CERCLA
To reverse the court’s decision, Yager notes Congressional action will be essential.
“A key player in Congress is Sen. John Barrasso (R-Wyo.). He is chairman of the Senate Environment and Public Works Committee, and the engagement of that committee to craft a solution legislatively is the next step. We’re working on that step right now,” he explains.
“We’re engaging Sen. Barrasso to help him understand Wyoming’s producers will be affected by this change – and we’re not just talking about big feedlots. This is far beyond just feedlots. We’re going to have a number of smaller cow/calf producers who will also have to report,” Yager continues. “These are requirements that have never before impacted farmers and ranchers. It’s really concerning.”
While Yager notes the agriculture community is working fervently to achieve a Congressional fix, he says there are a number of roadblocks.
“We want to get this fixed, but we’re under a tight timeline,” he says. “Given Congress needs to pass a funding bill by Jan. 19, it’s a lot to get done.”
However, Yager notes the challenge also provides an opportunity to utilize the appropriations process. Currently, a defunding rider is in place that would de-fund EPA’s enforcement of the agriculture piece of the bill.
“We’ve done a lot of lobbying and grassroots education, and we’ve worked to keep a rider in the final funding bill for Jan. 19,” he says. “While that’s helpful, it won’t solve the problem, so we need Congress to act.”
Yager further emphasizes, “Wyoming is a critical piece in fixing CERCLA, particularly given Sen. Barrasso’s relationship to the Senate Environment and Public Works Committee.”
He encourages producers to contact Barrasso, his staff and the rest of their Congressional delegation to urge them to pursue a congressional fix, to prioritize CERCLA reform and to alleviate the regulatory burden on agriculture.
Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.
