CERCLA/EPCRA emissions update: The waiting game continues

By Kyle Weldon, third-year student at Texas A&M University School of Law, and attorney Jim Bradbury, PLLC

Unfortunately for livestock producers, the waiting game for when and if they will be required to report emissions continues in the Waterkeeper Alliance v. EPA case from this past April.

Prior to this case, farms (which the EPA defines to include ranches and confined livestock operations) were exempt from the reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the Emergency Planning and Community Right-to-Know Act (EPCRA). While some operations may have aerial releases of hazardous substances (ammonia and hydrogen sulfide) from animal manure that exceed the reportable quantity threshold under these two laws, the EPA historically exempted farms from reporting. That changed in April 2017, when the Court of Appeals for the D.C. Circuit ruled in Waterkeeper Alliance v. EPA to vacate the EPA’s rule, ultimately siding with the environmental groups in holding that the exemption was inconsistent with statutory requirements.

Following the Waterkeeper Alliance decision, the Court has twice granted the EPA’s motions to stay the mandate in order to allow the agency time to develop guidance documents to assist farms with determining if they are required to report. While the EPA issued preliminary guidance in October 2017 to assist producers with reporting (how to best estimate emissions and complete reporting forms), there is still much confusion on who must report, because there is no generally accepted methodology for estimating emissions.

On Feb. 1, the Court once again extended this stay until May 1. However, once the stay is lifted, farms with animal operations that release certain amounts of hazardous substances will be required to report these air emissions. A helpful fact sheet for this reporting process can be found on the EPA’s webpage.

This fact sheet explains:

• How to report: Notify the National Response Center by sending an email to farms@uscg.mil with the following information: (1) name of the farm, (2) location of the farm (not the physical address, only the name of the city and state), and (3) name(s) of the hazardous substance(s) released.
• How to estimate the releases for reporting: The EPA has provided several resources to aid in the estimation of emissions. These estimates may be based on (1) past release data; (2) engineering estimates; (3) your knowledge of the facility’s operations and release history; (4) or your best professional judgment. Additionally, producers are only required to report an estimate, no monitoring data or actual reduction in emissions is required.

Congressional Response: On Feb. 13, Sen. Deb Fischer of Nebraska introduced the Fair Agricultural Reporting Method Act or “FARM” Act (S.2421). The goal of this legislation is to amend CERCLA in order to provide “an exemption from certain notice requirements and penalties for releases of hazardous substances from animal waste at farms.” The Act now has 34 co-sponsors and as of March 8, was in the Senate Committee on Environment and Public Works. Hopefully this legislation will keep the livestock industry from unnecessary reporting and shield it from future liability.