Emissions Rule Delayed

Court Puts Mandate on Hold to Jan. 22

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Livestock producers now have until Jan. 22, 2018, before an emissions reporting rule takes effect. (DTN file photo)

OMAHA (DTN) -- A federal court has delayed until Jan. 22, 2018, a mandate for livestock producers to report certain emissions, according to an order handed down from the U.S. Court of Appeals for the District of Columbia Circuit on Wednesday.

Back in April, the court threw out a U.S. Environmental Protection Agency decision to not require livestock operations to report emissions, essentially allowing the reporting rule to take full effect on Nov. 15, 2017. The rule requires livestock producers to report emissions of more than 100 pounds per day of either ammonia or hydrogen sulfide.

Animal feeding operations that confine more than 1,000 head of cattle, 2,500 head of hogs, or 125,000 chickens are defined as concentrated animal feeding operations, or CAFOs, by EPA. Ammonia and hydrogen sulfide emitted from livestock lagoons have been classified as "hazardous" and "extremely hazardous."

The National Pork Producers Council and the U.S. Poultry and Egg Association filed court briefs last week in support of the EPA's request to delay the mandate in the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, and the Emergency Planning and Community Right-to-Know Act, or EPCRA.

Craig Uden, president of the National Cattlemen's Beef Association (NCBA), said the court's ruling will allow his group time to continue work on legislation.

"Cattle producers have one more thing for which to be thankful this Thanksgiving weekend," he said in a statement to DTN.

"Agricultural operations were never intended to be regulated by these laws, so this court-ordered stay until Jan. 22 is very welcome news. We'll use this additional time to continue working on the introduction of stand-alone legislation to fix this issue, and we'll also promote corrective language in the appropriations process."

The EPA had asked the court for an extension of the deadline to either Jan. 17, 2018, or later to allow the agency to draft a better reporting form for farmers to use for compliance.

"Regardless of EPA's preliminary EPCRA interpretation, farmers will have to estimate their emissions and report their releases under CERCLA as soon as this court issues the mandate in this case," EPA said in a court filing.

"Allowing EPA this short additional time to finalize its CERCLA guidance and streamlined continuous release reporting form will help maximize the number of farmers that submit reports once the mandate is issued."

In addition, the agency said a delay would allow for further coordination in response to what is expected to be an increase in reports made to the EPA.

A number of environmental groups led by the Waterkeeper Alliance asked the court to deny the agency's request for an extension, calling the request a "smokescreen" to further delay the rule.

The NCBA had raised a number of concerns about how the rule could affect producers.

First, prior to the rule only those cattle operations with 1,000 or more animals were required to submit reports. With the rule, NCBA said operations with as few as 208 cattle are subject to reporting.

In addition, the industry has been concerned about the costs to comply with the reporting requirements, and exposure to citizen lawsuits.

Also, NCBA has expressed concern that the data could be misused by EPA to develop CAFO emissions regulations through the Clean Air Act.

The group also has raised concern about how the reporting rule could inundate the National Response Center with information from some 100,000 agriculture operations and limit the federal government's ability to respond to hazardous waste emergencies.

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley