A law that was intended to apply only to toxic Superfund sites but was extended to include farms and ranches may soon be “fixed,” at least in the eyes of livestock producers.
On Feb. 13, a bipartisan bill with initial support from 20 senators—10 from each side of the aisle—and dubbed the Fair Agricultural Reporting Method Act (FARM) was introduced in the U.S. Senate. The bill is intended to correct the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which was enacted to provide for cleanup of the worst industrial chemical toxic waste dumps and spills, such as oil spills and chemical tank explosions.
Scott Yager, National Cattlemen’s Beef Association (NCBA) chief environmental counsel, put it into laymen’s terms, saying, “Plain and simple, the FARM Act exempts agriculture from having to report poop smells to the government under the Superfund law.”
Led by Sen. Deb Fischer (R-NE) and Sen. Joe Donnelly (D-IN), the bill’s introductory paragraph says the bill will “Amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to provide exemption from certain notice requirements and penalties for releases of hazardous substances from animal waste at farms.”
Other senators offering initial support for the measure include: John Barrasso (R-WY); Tom Carper (D-DL); Mike Rounds (R-SD); Pat Roberts (R-KS); Joni Ernst (R-IA); Jim Inhofe (R-OK); Johnny Isakson (R-GA); Jerry Moran (R-KS); Roger Wicker (R-MS); John Hoeven (R-ND); Heidi Heitkamp (D-ND); Mark Warner (DVA); Chris Coons (D-DL); Claire McCaskill (D-MO); Amy Klobuchar (D-MN); Joe Manchin (D-WV); Bob Casey, Jr. (D-PA); and Tina Smith (D-MN).
Agricultural groups argue CERCLA was never intended to govern agricultural operations, for which emissions from livestock are a part of everyday life. If enacted, the law would require reporting ammonia and hydrogen sulfide emissions in excess of 100 pounds per day to the U.S. Coast Guard. But determining the amount of emissions is difficult because there isn’t a clear model or formula.
Two different calculators to determine emissions from the University of Nebraska and Texas A&M University are actually designed more for feedlot use than open spaces. These calculators do provide some guidance and estimate that thresholds would be met with between 208 and 330 head of cattle. That doesn’t consider whether or not cattle are in a confined pen or in an open pasture. The report would need to be made on excess of 100 pounds of emissions in any situation.
The government appeared to agree with agriculture and to make this clear, in 2008, the Environmental Protection Agency (EPA) finalized a rule to clarify that farms were exempt from CERCLA reporting. Small farms, in particular, were exempt from the Emergency Planning and Community Right-to-Know Act (EPCRA) reporting, given that low-level livestock emissions are not the kind of “releases” that Congress intended to manage with these laws.
Moving ahead, upon being sued by environmental advocacy groups, the Obama administration’s EPA defended the exemption in court on the grounds that CERCLA and EPCRA do not explicitly exempt farms because Congress never believed that agriculture would be covered under these statutes, so a specific statutory exemption was not viewed to be necessary.
Despite the EPA arguments, in April 2017, the D.C. Circuit Court vacated the EPA’s 2008 exemption, putting nearly 200,000 farms and ranches under the regulatory reporting authorities enshrined in CERCLA and EPCRA. The new reporting requirements could have gone into effect on Jan. 22, but the court delayed implementation of the requirements until May 1, 2018, which gives Congress time to act on the new FARM legislation.
Yager said the bipartisan support for FARM is rare in Washington, D.C., and noted, “I think this goes to show that this issue is something that Congress wants to fix.” He went on to say that getting to this point has not been easy and has taken a lot of grassroots support by farmers and ranchers reaching out to their senators to let them know this is an important issue.
NCBA President Kevin Kester said, “There’s not a lot of truly bipartisan legislation in Washington these days, but one thing that pretty much everybody can agree on is that a responsibly-run cattle ranch isn’t a toxic Superfund site.”
In addition to NCBA, other agriculture, livestock and poultry groups have put their support behind FARM.
American Farm Bureau Federation President Zippy Duvall said “Congress enacted Superfund and emergency response laws to provide the tools needed to quickly respond to hazardous waste emergencies. Emissions from animals raised on farms and ranches were never intended to be swept into these reporting requirements.” He went on, “We urge Congress to act swiftly to pass this legislation before the reporting requirement overwhelms our first responders and burdens farmers and ranchers with needless reporting obligations and the risk of activist lawsuits.”
National Pork Producers Council President Ken Maschhoff also weighed in, saying, “Routine emissions from hog manure do not constitute a ‘hazardous’ emergency that requires the Coast Guard to activate a national cleanup response. We’re extremely grateful to the cosponsors of the FARM Act for their leadership and common sense on this issue.
“EPA exempted farms from CERCLA reporting because it knew responses would be unnecessary and impractical. Frankly, the court created a problem where none existed.”
The issue also could impact the poultry industry. In a joint statement from the National Chicken Council, National Turkey Federation, U.S. Poultry & Egg Association and United Egg Producers, the groups praised the bill and said, “This is significant breakthrough legislation restoring CERCLA reporting to its intended purpose, a united legislative effort that has been nearly 15 years in the making, and we appreciate their swift action on behalf of America’s turkey, chicken and egg farmers.” They also wrote, “Marking a bipartisan level of cooperation, the bill demonstrates strong support from both Republicans and Democrats on the Senate Environment and Public Works Committee to clarify Congress’ intent.”
Looking ahead to the May 1 deadline Yager said, “It’s going to be a hefty lift to get this passed before then. But we will be doing everything we can within NCBA and working with our state affiliates to get as much support for this bill as standalone legislation as we can.” He went on to say they are also looking for opportunities where the language of FARM could be incorporated in a “must pass” bill.
Noting the importance of constituent influence on lawmakers, Yager said if someone notices their senator’s name is not in the group of initial supporters they should look at all methods to reach out including Facebook, email, phone calls, tweets. He even recommended, “Send emojis if you have to.” — Rae Price, WLJ editor
