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Court issues stay on emissions reporting

Article-Court issues stay on emissions reporting

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Mandated CERCLA and EPCRA emissions reporting delayed until Jan. 22.

The U.S. Court of Appeals for the District of Columbia Circuit issued a decision to stay a mandate that agricultural entities file reports under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) and the Emergency Planning & Community Right-to-Know Act (EPCRA) until Jan. 22, 2018.

The court originally ruled that producers would have to begin filing by Nov. 15, but on Nov. 22, the court offered additional relief.

“Cattle producers have one more thing for which to be thankful this Thanksgiving weekend. 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,” Craig Uden, president of the National Cattlemen’s Beef Assn., said.

In a statement to Feedstuffs, the National Pork Producers Council said it is pleased that the court delayed the emissions reporting date until Jan. 22 because it will give the Environmental Protection Agency “more time to provide farmers more specific and final guidance before they must estimate and report emissions and to develop a system that allows farmers to comply with their legal obligations.”

On Oct. 26, 2017, EPA issued interim guidance designed to educate livestock operations about the upcoming reporting requirements for emissions from animal waste.

Under the guidance, EPA noted that the reportable quantity for each ammonia and hydrogen sulfide is triggered at a release into the air of 100 lb. or more within a 24-hour period, explained Roger McEowen with the Kansas Farm Bureau and professor of agricultural law and taxation at Washburn University. That level would be reached by a facility with approximately 330 head (for a confinement facility), according to a calculator used by the University of Nebraska-Lincoln that is based on emissions produced by the commingling of solid manure and urine.

The EPA guidance also indicates that reporting does not apply under EPCRA to air emissions from substances that are used in “routine agricultural operations,” McEowen added. Those substances, according to EPA, don’t meet the definition of “hazardous.”

EPA states that “routine agricultural operations” include “regular and routine” operations at farms, animal feeding operations, nurseries and other horticultural and aquacultural operations. That would include on-farm manure storage used as fertilizer, paint for maintaining farm equipment, fuel used to operate farm machinery or heat farm buildings and chemicals for growing and breeding fish, EPA noted. It would also appear to include livestock ranches where cattle graze on grass.

EPA conceded that CERCLA release reporting will be “challenging for farmers” because there is generally no accepted methodology for estimating emission quantiles at this time, Leah Ziemba, industry group chair of agribusiness, food and beverage at the Michael Best law firm, explained in a Nov. 13 webinar hosted by the American Dairy Coalition.

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