Environmental emissions reporting not recommended until court order is effective
The D.C. Circuit Court of Appeals determined in April 2017 that the Environmental Protection Agency did not have authority to exempt agriculture from the Comprehensive Environmental Response, Compensation and Liability Act reporting requirements. This removed an exemption for agriculture that was on the books for 10 years. This past fall, the court extended the deadline for reporting to January 22, 2018. While the stay on the reporting mandate runs through January 22, reporting requirements do not actually take effect until the court enters such an order, which has not occurred. It is uncertain when this might happen, but it is important that producers do not report until legally obligated to do so.
EPA has filed a request for an additional extension of the deadline. When KLA receives notification that reporting is required, notification and instructions will be sent out.
It is important to note, CERCLA reporting is not limited to confined animal feeding operations. The requirements are applicable to any agricultural producer that emits a reportable quantity of a hazardous substance into the air. Ammonia (NH3) and hydrogen sulfide (H2S) are common hazardous substances emitted from animal waste that require reporting if released into the air in amounts greater than or equal to the reportable quantity of 100 pounds within a 24-hour period. According to EPA, this includes “animals that reside primarily outside of an enclosed structure and graze on pastures….”
This ammonia emissions estimator at https://water.unl.edu/documents/Ammonia%20Emissions%20Estimator%20-%20Daily%20VersionV03.pdf may assist members who operate CAFOs. However, the model is not calibrated to estimate ammonia emissions from pasture cattle, which likely are less than those from a CAFO. While grazing operations are not exempt from CERCLA, reporting is triggered when an operator has knowledge of a reportable emission. Given there are no scientific means of making an accurate calculation for pasture situations, it is uncertain when or if reporting would be required by EPA. In addition, a pasture setting may be exempt because livestock manure on grassland could be considered the normal application of fertilizers, which is exempt under CERCLA.
CAFO operations with more than 330 head of confined animals should utilize the above resource to determine if it will produce a reportable quantity of ammonia. EPA has not yet provided a method to calculate hydrogen sulfide. NCBA, however, has developed a calculator and estimates that a feedyard with about 11,750 head could trigger reporting of hydrogen sulfide emissions.
Members can access EPA’s compliance information by visiting https://www.epa.gov/epcra/cercla-and-epcra-reporting-requirements-air-releases-hazardous-substances-animal-waste-farms. KLA also will provide members with step-by-step instructions to complete the reporting process. For CAFOs, this will include all necessary emissions calculators. A one-page form that may be used by producers to complete the written report requirement also will be provided. These documents will be available when the court issues the mandate.
KLA is working closely with NCBA for a short- and long-term fix. Language defunding EPA’s enforcement of CERCLA reporting is included in the House appropriations package that passed the House in September. However, the full appropriations package has yet to pass. There also is draft legislation to exempt agriculture from reporting air emissions from animal waste under both CERCLA and the Emergency Planning and Community Right to Know Act. KLA urges members to contact their U.S. senators and representative directly so elected officials understand the true impact of this requirement. NCBA estimates more than 200,000 farms, of which 60,000 are cattle operations, will be subject to these requirements, at a cost of nearly $15 million.
