On a day when the process for withdrawing the U.S. Environmental Protection Agency’s Waters of the United States rule formally was initiated, the National Pork Producers Council filed a brief in support of the EPA’s recent motion to delay a federal court order requiring farms to begin onerous and unnecessary air emissions reporting.
An April 11 decision by the U.S. Court of Appeals for the District of Columbia Circuit rejected an EPA exemption for farms from reporting emissions under the Comprehensive Environmental Response, Compensation and Liability Act and the Emergency Planning Community Right to Know Act. CERCLA mainly is used to clean hazardous waste sites but has a federal reporting component, while EPCRA requires entities to report on the storage, use and release of hazardous substances to state and local governments, including first responders. The agency limited EPCRA reporting of emissions to large, confined animal feeding operations, requiring them to make one-time reports.
In exempting agriculture from the reporting requirements, EPA reasoned that emissions from farms might exceed thresholds that would trigger responses under CERCLA, but responses would be “unnecessary, impractical and unlikely.” (Agitating a manure pit, for example, could result in the release of ammonia and hydrogen sulfide in amounts that exceed reportable levels, but the gases would dissipate quickly, so no response would be warranted.)
EPA asked the Court of Appeals to delay enforcement of emissions reporting until Jan. 17, 2018, on the grounds that the approximately 63,000 farms affected need time to estimate their emissions and to explore additional “regulatory and administrative approaches to address these reporting obligations.”
In its supporting brief, NPPC argued that enforcing the reporting requirements on farms before the EPA can provide them with guidance “will trigger confusion among farmers and agencies without benefiting the public.”
Public comment period opens for WOTUS rule withdraw
The Trump administration today formally initiated the process to repeal the WOTUS rule, proposing a regulation rescinding the rule and opening the regulation to public comment. The WOTUS rule, which went into effect in 2015 but was put on hold by a federal court, broadened the EPA’s regulatory authority over waterways to include, among other water bodies, upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also covered lands adjacent to such waters.