2017-09-13 / News

Court loss on farm air quality leads to needed amendment to law


WASHINGTON — Congress never believed that farms would fall into the realm of regulated parties.

A proposed amendment to laws that regulate large, intense escapes of toxic industrial gases could finally eliminate applications to agriculture that are considered inappropriate and an open door for anti-farming group lawsuits.

Farm Bureau is supporting the amendment, introduced by Missouri Representative Billy Long, that would amend the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 to “prohibit EPA from enforcing these CERCLA and EPCRA reporting requirements provisions on farms and ranches,” according to the American Farm Bureau Federation.

In 2008, the Environmental Protection Agency (EPA) finalized a rule to exempt all animal feeding operations from CERCLA reporting and small operations from EPCRA reporting requirements, recognizing that low-level continuous emissions of ammonia and hydrogen sulfide from livestock are not the “releases” that Congress intended to regulate,” AFBF said in a release to state Farm Bureaus.

“When (environmental activist group) Waterkeeper challenged the EPA in 2009, the Obama administration spent eight years defending this Bush-era regulation. In defending the exemption, the Obama EPA argued that CERCLA and EPCRA language is unambiguous because Congress never believed that farms would fall into the realm of regulated parties.”

However, in April 2017, the D.C. Circuit Court issued a decision vacating the 2008 EPA agriculture exemption, concluding that these statutes provide no legal means for the EPA to exempt agriculture.

“EPA had come to farmers and asked them to participate in on-farm testing to see whether the agency could determine a way to calculate livestock emissions or if it would even be necessary for them to do so,” said Laura Campbell, manager of Michigan Farm Bureau’s Agriculture Ecology department. “EPA signed an agreement with those farms, including around 300 in Michigan, saying that if they participated in the study they would be exempt from reporting requirements regardless of the findings.”

EPA eventually concluded that “the emissions coming from farms were in small amounts that continually dispersed into the air,” Campbell said. “So the agency decided to exempt farms from the reporting rules until the court said (in April) that the EPA did not act legally in issuing that exemption.”

That decision, however, goes against the intent of Congress, Campbell said. Rep. Long’s amendment brings it back.

“This legislative fix will let EPA go back to what Congress intended when it wrote the Clean Air Act and the CERCLA and EPCRA reporting requirements: to make sure residents are warned when there is an accident or a danger to public health, not to harass farmers conducting normal farming operations,” she said.

The amendment reads: “ None of the funds made available by this Act may be used to implement, administer, or enforce any requirement pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 or the Emergency Planning and Community Right-to- Know Act of 1986, with respect to air emissions from agricultural sources, for such agricultural sources to collect information for or submit, or for any federal agency to receive, store, or distribute, continuous release reports.”

Without the legislative fix, according to the AFBF, The court ruling poses the following immediate concerns:

Over-regulation. Agricultural operations across the country, ranging from small farms and ranches to large feedlots, will be subject to CERCLA and EPCRA reporting liability. Prior to the court decision, only operations that qualified as “Large CAFOs” under Clean Water Act were required to submit reports.

Cost and time-prohibitive. The costs of complying with CERCLA and EPCRA reporting requirements will be significant for small farmers and ranchers across the country. Not only will operations be required to make emissions determinations, but spend time completing and submitting tedious reports.

Exposure to citizen lawsuits. Farm Bureau anticipates that environmental groups will use publicly available CERCLA reports to create a national list of farm locations, and use this list to bring lawsuits under the Clean Water Act and Clean Air Act. Additionally, Farm Bureau is concerned that the misuse of this information will lead to unnecessary and overly burdensome regulation of animal feeding operations.

National security vulnerability. Reports from nearly 100,000 agricultural operations will inundate the Coast Guard’s NRC with unnecessary information, severely limiting the federal government’s ability to respond to real hazardous waste emergencies. Not only does this put the environment at risk, but public safety as well.

Following the court decision vacating EPA’s agricultural exemption (April 11, 2017), the same court recently granted a stay for three months, providing time for the agency to develop administrative guidance, AFBF said.

“However, the agency’s options are limited and buying time does not change the ultimate outcome: thousands of farms and ranches across the nation will be forced to report their emissions to the EPA or face liability of up to $53,907 per day. Now, it is up to Congress to ensure that the EPA is not required to implement this overly burdensome court decision,” AFBF said.

Campbell agreed.

“This proposed amendment is just what our farmers need – a permanent legislative solution to a problem caused by activists trying to shut down livestock agriculture,” she said. “As a regulatory agency, EPA had provided farmers with an exemption for this air emissions reporting rule because they recognized that the rule was meant to help local and state officials warn residents of emergencies. They don’t need warnings about the slow and small amounts of diffuse emissions coming from a livestock farm.

“The lawsuit filed by those activist groups certainly seemed to be a thinly veiled attempt to hamper livestock agriculture, knowing that there is no reasonably accurate way to calculate ammonia or other emissions from livestock and that farmers would have to go to tremendous expense to comply with the law,” Campbell said.

Farmers are encouraged to reach out to their members of Congress and request that their members support and/or cosponsor Rep. Long’s amendment.

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