Source: NATIONAL PORK PRODUCERS COUNCIL. 11/9/17

With a Nov. 15 deadline looming, the National Pork Producers Council and the U.S. Poultry and Egg Association today filed a brief in support of the U.S. Environmental Protection Agency’s motion to delay a mandate that farmers report certain air emissions from manure on their farms.

In April, a federal court, ruling on a lawsuit brought by environmental activist groups against EPA, rejected an exemption for farms from reporting “hazardous” emissions under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Emergency Planning Community Right to Know Act (EPCRA). CERCLA mainly is used to clean hazardous waste sites but has a federal reporting component, while EPCRA requires entities to report on the storage, use and release of hazardous substances to state and local governments, including first responders.

EPA had exempted farms from CERCLA reporting, reasoning that while emissions might exceed thresholds that would trigger responses under the law such responses would be “unnecessary, impractical and unlikely.” The agency limited EPCRA reporting to large, confined animal feeding operations (CAFOs), requiring them to make one-time reports. Under the decision from the U.S. Court of Appeals for the District of Columbia Circuit, all livestock farms, not just CAFOs, are required to report.
Between 60,000 and 100,000 livestock and poultry farmers will need to file air emissions reports with the U.S. Coast Guard National Response Center (NRC), beginning Nov. 15, as well as written reports with their regional EPA office within 30 days of reporting to the NRC.

Some farmers already have tried filing reports, but the NRC system has been overwhelmed. NRC operators are refusing to accept reports for more than a single farm per call because of concern that the phone systems will be tied up for non-emergency purposes. In one instance, an NRC operator sent notices out to more than 20 state and federal response authorities, including the Department of Homeland Security, the Centers for Disease Control and Prevention and a state policy agency, after receiving a phone call.

In seeking a second delay in implementing the CERCLA reporting mandate – the original filing deadline technically was the day the federal court threw out the exemption – EPA, NPPC and the poultry and egg association are asking the court to give the agency more time to “provide farmers more specific and final guidance before they must estimate and report emissions” and to develop a system that will enable farmers to comply with their legal obligations.

Background
CERCLA and EPCRA Reporting Requirements for Air Releases of Hazardous Substances from Animal Waste at Farms
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Emergency Planning and Community Right to Know Act (EPCRA) require facilities to report releases of hazardous substances that are equal to or greater than their reportable quantities (RQ) within any 24-hour period. Following a hazardous substance reportable release, a facility owner or operator must notify federal authorities under CERCLA and state and local authorities under EPCRA.

On December 18, 2008, EPA published a final rule that exempted most farms from certain release reporting requirements in CERCLA and EPCRA. Specifically, the rule exempted farms releasing hazardous substances from animal waste to the air above threshold levels from reporting under CERCLA. For EPCRA reporting, the rule exempted reporting of such releases if the farm had fewer animals than a large concentrated animal feeding operation (CAFO).

In short, all farms were relieved from reporting hazardous substance air releases from animal waste under CERCLA, and only large CAFOs were subject to EPCRA reporting.

A number of citizen groups challenged the validity of the final rule in the U.S. Court of Appeals for the District of Columbia Circuit. On April 11, 2017, the Court struck down the final rule, eliminating the reporting exemptions for farms. EPA sought additional time from the Court to delay the effective date so that EPA could develop guidance materials to help farmers understand their reporting obligations.

Unless the DC Circuit Court takes further action, the court’s ruling takes effect on November 15, 2017.