Have we finally reached the conclusion to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right to Know Act (EPCRA) saga related to reporting manure emission from livestock agriculture (for more background, see our 2017 blog)?

EPA “Final Rule” in 2008

When the US Environmental Protection Agency (EPA) issued the “final” rule in late 2008 exempting air reporting for animal waste emissions under CERCLA and EPCRA, it seemed to close the book on this issue.  Not often do the regulated and the regulators agree on an issue such as this exemption.

In 2008, the EPA stated, “…we cannot foresee a situation where the Agency would take any future response action as a result of …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.”

Waterkeeper Challenges Exemption

However, this regulatory exemption was challenged by Waterkeeper et. al. and was overturned by the court of Appeals for the District of Columbia in April 2017.  For the next several months, farms and farm groups were scrambling trying to figure out how to meet an impending reporting deadline as well as trying to find a legislative “fix.”

Due to the FARM (Fair Agricultural Reporting Method) Act’s legislative amendments to CERCLA, air emissions from animal waste at a farm are exempt from reporting under CERCLA.

Fair Agriculture Reporting Method

With a renewed commitment under the current administration to reduce regulatory burdens, in the spring of 2018, a new legislative fix was proposed under the Fair Agriculture Reporting Method (FARM).  This led to a proposed rule in November 2018. The EPA proposed to amend the release notification regulations under EPCRA to add the reporting exemption for air emissions from animal waste at farms provided in section 103(e) of CERCLA.

This proposal led to the “final” legislative solution that satisfied both agriculture and the EPA.

On their website, the EPA states the following:

“Reporting of air emissions from animal waste at farms is not required under EPCRA. On June 4, 2019, EPA Administrator Wheeler signed a final rule to amend the emergency release notification regulations under EPCRA.  This amendment adds a reporting exemption for air emissions from animal waste at farms.”

“Due to the FARM (Fair Agricultural Reporting Method) Act’s legislative amendments to CERCLA, air emissions from animal waste at a farm are exempt from reporting under CERCLA.  Accordingly, on August 1, 2018, EPA published a final rule revising the CERCLA reporting regulations to incorporate the FARM Act’s amendments to CERCLA.”

Renewed Litigation

On the heels of the EPA exemption, the first of what is likely to be many shots across the bow, the Humane Society of the United States (HSUS) stated, “The last thing these enterprises (Concentrated Animal Feeding Operations), which operate with little regard for humans, animal and the environment need is another free pass to continue polluting our air with no consequences.  You can rest assured the HSUS will battle the new ‘guidance’ and this rule in court.”

As we have previously reported, environmental groups have been energized and are not shy about bringing more litigation.  Natural Resource Defense Counsel’s (NRDC) Aaron Colanelo said, “All told, we’ve engaged in a new legal action or new lawsuit against the Trump administration about every eight days since the inauguration.  It started right away.  It started at midnight, or shortly before midnight, on the night of the inauguration”

Further, donations have allowed environmental groups the resources to bring these lawsuits.  For example, according to the most-recent report on Charity Navigator, HSUS’s current net assets are $249,138,831.00.

Environmental Regulations Still Apply to Agriculture

It is important to remember that this new rule does not exempt farms from all CERCLA/EPCRA reporting.  For example, a release from an anhydrous ammonia storage tank into the air remains subject to reporting requirements if the release exceeds the applicable reportable quantities.  There are other environmental regulations that may apply to agriculture (depending on several factors) as well, including the Spill Prevention Control and Countermeasure Plan (SPCC) and the National Pollutant Discharge Elimination System (NPDES).

If history is any indication, then environmental regulations are never settled, they are only settled for now.  If you are not sure if you are in compliance, we can help.  If you have questions or need assistance, you can reach me at 248-932-0228, Ext. 125.

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