EPA Awaits Emissions Ruling

OMAHA (DTN) -- As of Tuesday morning, livestock producers are not yet required to report certain emissions to the U.S. Environmental Protection Agency, since a federal appeals court had not yet responded to an agency request for a delay past Monday's deadline.

In a message posted on the agency's website, EPA said it will not enforce the reporting requirement until the U.S. Court of Appeals for the District of Columbia Circuit issues a ruling.

"No reporting is required until the court issues its order, or mandate, enforcing its decision to eliminate the reporting exemptions for farms," EPA said.

Back in November, the court delayed until Jan. 22, 2018, the rule that requires livestock producers to report emissions of more than 100 pounds per day of either ammonia or hydrogen sulfide.

In its Jan. 19 motion to delay for three months, the EPA said farmers are not yet ready to meet the requirements of the mandate.

"As explained in EPA's prior motions to stay the issuance of the mandate, EPA has been developing guidance to help farms come into compliance with requirements to report certain releases of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act and Emergency Planning and Community Right-to-Know Act," the agency said.

"On Oct. 25, 2017, EPA released its preliminary guidance and solicited public input. Based on comments EPA has received, there is still confusion among farmers as to how they will meet their reporting obligations."

In April 2017, the court threw out an EPA decision to not require livestock operations to report emissions. That essentially allowed the reporting rule to take full effect on Nov. 15, 2017.

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 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.

In requesting a delay in the rule, the EPA said it 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 National Cattlemen's Beef Association 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.

The National Cattlemen's Beef Association launched a media campaign last week aimed at spotlighting the reporting requirement.

NCBA's Chief Environmental Counsel Scott Yager is featured in an online video wearing a yellow hazmat suit explaining the rule while at a federal Superfund site in Virginia. He then shows the contrast between that site and a nearby cattle farm.

"This is just another example of radical environmental groups using the courts to wildly distort the original Congressional intent behind legislation," NCBA President and Nebraska cattleman Craig Uden said in a news release last week.

"Unless this ridiculous situation is fixed, agricultural producers will soon have their operations treated like toxic Superfund sites, and government agencies like the U.S. Coast Guard will be inundated with unnecessary questions and reports."

The rule potentially affects nearly 200,000 farms and ranches.

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

Follow him on Twitter @toddneeleyDTN

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