There are many provisions in environmental regulations that, at least to those who are “regulated,” don’t seem to make a lot of sense. These provisions are often the focus of debate, litigation, and congressional amendments. Look no further than the recent amendment to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) as it relates to emissions from manure at livestock farms.
CERCLA Reporting Required
The application of CERCLA on farms has long been debated and litigated. It was just about this time last year we reported that the Environmental Protection Agency’s (EPA) exemption from CERCLA reporting (for certain farms) was vacated by the US Court of Appeals for the District of Columbia (Waterkeeper Alliance, et al v EPA et al). Environmental groups applauded this decision, as they believed the farms should be required to report.
Background of the CERCLA Debate
This multi-year battle over CERCLA reporting was made even more dramatic because of the aligning of views between the EPA and Farm Groups. When it came to the CERCLA issue, the EPA (who had exempted farms from the reporting requirement in 2007) was on the same page with agriculture. The reporting, both sides agreed, provided no meaningful information or any additional environmental protection.
As the EPA stated in 2007, “…we cannot foresee a situation where the Agency would take any future response action as a result of such notification of releases of hazardous substances from animal waste at farms because in all instances the source (animal waste) and nature (to the air over a broad area) are such that on-going releases makes an emergency response unnecessary, impractical and unlikely.”
Farm Groups Scramble to Report and Respond
Nevertheless, throughout the second half of last year following the US Court of Appeals Waterkeeper decision, farms and farm groups were trying to figure out how the farms were going to meet the reporting obligations. Regulators and local emergency planners were none too happy either. What were they supposed to do with the pending, overwhelming influx of reporting data?
The Legislative Response
Because the court had issued their ruling, the only option was a legislative fix. That is exactly what developed over the past few months. As reported by the EPA, “On March 23, 2018, the Consolidated Appropriations Act, 2018 (Omnibus Bill), was signed into law. Title XI of the Omnibus Bill, called the ‘Fair Agricultural Reporting Method Act’ or ‘FARM Act’ exempts the reporting of ‘air emissions from animal waste at a farm’ under CERCLA. When the D.C. Circuit Court of Appeals issues its mandate vacating the 2008 final rule (expected as soon as May 1, 2018), farms will remain exempt from the CERCLA reporting requirements as a result of the Omnibus Bill.”
It’s worth mentioning here that there are two companion bills: H.R. 5275 “Agricultural Certainty for Reporting Emission Act or ACRE” and H.R. 848 the “Farm Regulatory Certainty Act.” The latter bill would amend RCRA to specifically exclude manure and fertilizer as a waste under RCRA (see “Major Environmental Developments Affecting Agriculture”).
So is this the final word on these issues? I’ll go out on a limb and say, “No.” Environmental groups remain focused on large livestock agricultural operations and will continue to work legislatively as well. And while environmental issues are matters of science, they are also matters of “political science.” As political climates change, so too will future legislation.
As we have in the past, we will continue to provide assistance to the regulated community to help to find reasonable solutions to the many (and changing) environmental challenges they face. If you have questions or require assistance, feel free to call me at 248-932-0228, Ext 125.