A law set to take effect Jan. 22 could cause livestock producers to comply with laws meant to apply to highly toxic superfund sites. This is not about feedlots which are governed by different rules; this law could impact cattle and other livestock on pastures.
The National Cattlemen’s Beef Association (NCBA) on Jan. 16 started a media campaign aimed at correcting a court decision that could add time and paperwork burdens to livestock producers trying to comply with the laws that, as NCBA noted, “are only meant to apply to highly toxic superfund sites.”
This legislation is in response to a lawsuit brought by environmental groups regarding the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and The Emergency Planning and Community Right-to-Know Act (EPCRA).
NCBA explained that CERCLA was enacted to provide for cleanup of the worst industrial chemical toxic waste dumps and spills, such as oil spills and chemical tank explosions, and EPCRA was put in place to ensure that parties who emit hazardous chemicals submit reports to their local emergency responders to allow for more effective planning for chemical emergencies. Both of these laws include reporting requirements connected to the events at hand, and were not intended to govern agricultural operations where emissions from livestock (manure odors) are a part of everyday life.
In fact, the Environmental Protection Agency (EPA) in 2008 finalized a rule clarifying that farms were exempt from CERCLA reporting, and small farms in particular were exempt from EPCRA reporting.
Scott Yager, NCBA’s chief environmental counsel, told WLJ he contends that the laws were never meant to regulate any portion of agriculture. He provided examples of incidents that could trigger a report and response as an explosion at a fertilizer plant or an overturned tanker that may contain chemicals that would pose an acute environmental and public health impact to neighbors.
“It was never meant to regulate manure smells that are ongoing and continuous and low level that are caused by everyday farm and ranch activities—from animals.”
The rule would apply to all livestock operations including large open-space pastures where daily thresholds meet or exceed 100 pounds of emissions per day. Yager said it is not determined by size of pasture, but by the number of animals and emissions.
Asked how the emissions would be measured, Yager pointed to calculators developed separately by the University of Nebraska and Texas A&M University, which are designed more for feedlots and dairies than open spaces. Those models have varying results with Nebraska’s estimate being 208 head of beef cattle, and Texas A&M’s being 330 head of beef cattle as the threshold for reporting.
Under the law, producers would be required to self-report when the threshold is met. Reports are initially made to the U.S. Coast Guard notifying them of low-level continuous emissions from the breakdown of manure on an agricultural operation. Additional reports are filed with regional EPA offices.
While the Coast Guard may seem like an unlikely agency to accept reports, especially from land-locked states, Yager explained that it runs the national response center, making it the first stop in coordinating federal emergency responses. He noted this seems absurd because “we’re talking about poop smells. The Coast Guard has said in no uncertain terms that they aren’t going to respond to these things. Local emergency responders who collect EPCRA reports are not going to respond to agriculture reports for poop smells,” Yager said.
“No one wants the information. EPA doesn’t want it. The only people who want this stuff are the environmental activists who litigated it in the first place.”
As noted, these regulations are different from the Clean Water Act that has rules about feedlots or confined animal feeding operations or CAFOs. Under that law there needs to be a concentration of animals within a given space. Under CERCLA and EPCRA the focus is on the reporting threshold.
“That’s why so many more agricultural producers are going to be subject to these reporting requirements than they typically were under EPA laws and regulations in the past,” Yager said.
The reporting mandate that exempted agriculture had support from Republicans and Democrats. Yager said the George W. Bush administration put the finishing touches on the agricultural exemption that became effective Jan. 21, 2009. Later, during his first term, President Barack Obama defended the exemption in court.
Still environmental groups, led by the Waterkeeper Alliance, pursued legal action, and in April 2017 received a ruling from the U.S. Court of Appeals for the District of Columbia saying the EPA didn’t have the authority to exempt agriculture.
That ruling, Yager said, exhausted the ability to seek relief from the court as a stay for implementation had already been granted. The next step he said is an act of Congress. To that end, no legislation has been introduced yet, but should be expected soon.
In the meantime, Yager said it is important for livestock producers to reach out by email or phone calls to their congressional delegations and let them know changing the law is important. — Rae Price, WLJ editor
