Animal Waste Emissions from Large Concentrated Animal Feeding Operations: EPA, under the guns of the U.S. Court of Appeals for the District of Columbia and the EPA Office of Inspector General, Issues Interim Guidance to Farmers

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November 14, 2017

Introduction
Let me be Captain Obvious here. When the title is that long, the topic, including its context and history, is convoluted. Let’s start at the end, work our way toward the beginning, and come full circle. On October 26, 2017, the U.S. Environmental Protection Agency (EPA) issued a press release announcing an interim guidance for reporting air emissions of hazardous substances in excess of reportable quantities from animal waste at farm operations.

This interim guidance is titled “CERCLA and EPCRA Reporting Requirements for Air Releases of Hazardous Substances from Animal Waste at Farms.” See https://www.epa.gov/epcra/cercla-and-epcra-reporting-requirements-air-releases-hazardous-substances-animal-waste-farms. It alerts farmers of the November 15, 2017, deadline for reporting air emissions and includes links to Frequent Questions and resources for calculating emissions, including ammonia and hydrogen sulfide from, among others, large dairy farms.
The purpose of the interim guidance is to assist farms in complying with requirements to report releases of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). CERCLA (also referred to as Superfund) and EPCRA are federal environmental statutes that require certain notifications of releases of “hazardous substances” and “extremely hazardous substances”, respectively, above a specified “reportable quantity” (RQ) within any 24-hour period. Both statutes establish 100 pounds as the RQ for ammonia and hydrogen sulfide.

The Frequent Questions portion of the interim guidance points out:
* reporting must be made to the National Response Center (NRC) at 1.800.424.8802, staffed by the U.S. Coast Guard, which serves as the point of contact for reporting environmental releases to federal agencies;
* the reportable release should be reported as an “initial continuous release notification”;
* a written “continuous release report” should be submitted to the EPA Regional Office (for Wisconsin, Michigan, Illinois, Indiana, and Ohio) (EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604-3507);
* a follow up written report should be submitted one year later to the EPA Regional Office;
* the reports should be made for ammonia (NH3) and hydrogen sulfide (H2S);
* notification should not be made to the State Emergency Planning Commission (SERC) or the Local Emergency Planning Committee (LEPC) under EPCRA based on a legal interpretation EPA is asserting that air emissions from animal waste constitute “routine agricultural operations” that are not subject to the reporting requirement under EPCRA;
* normal application of fertilizers and pesticides should also not be reported under EPCRA because they are clearly exempt, except for spills or accidents that release hazardous substances in excess of applicable RQs;
* farms that are participating in EPA’s 2005 Animal Waste Feedings Operations Air Compliance Agreement do not need to report releases at this time (but they will need to do so by a later date to be established);
* an extension of the November 15, 2017, reporting date cannot be requested;
* releases can be estimated by completing the form titled “Dairy Operations – Continuous Release Report – Emergency Planning and Community Right-to-Know Act (EPCRA) (Revisions dated January 13, 2009), which is linked to the interim guidance;
* circumstances could warrant additional continuous release reporting for:
** “statistically significant increase” (SSI) notification for a change to previously reported release notification, such as an increased number of animals, or
** a significant change or disruption of waste handling systems or procedures;
* See “Reporting Requirements for Continuous Releases of Hazardous Substances, A Guide for Facilities on Compliance”.

Statutory and Regulatory Context
A long history underlies the reporting of air emissions of hazardous substances from animal waste. The statutory framework lies at the intersection of the Clean Water Act (CWA), the Clean Air Act (CAA), CERCLA, and EPCRA. The CWA, enacted in 1972, defined a “point source” as, among others, a “confined animal feeding operation.” EPA regulations that implement the CWA define an “animal feeding operation” (AFO) as a lot or facility where animals have been, or will be, stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period and where crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility. AFOs may constitute CAFOs (concentrated animal feeding operations) based on herd size as “Large CAFO”, “Medium CAFO”, or by designation as “Small CAFOs.” See “NPDES Permit Writer’s Manual for CAFOs, Chapter 2 – AFOs and CAFOs.”  https://www.epa.gov/npdes/npdes-permit-writers-manual-0

The CAA prohibits releases of hazardous substances to the atmosphere above certain thresholds in the absence of, and within the terms of, air emissions permits issued by the EPA or its state-delegated authority. CERCLA requires notification to the federal government (through the NRC) of releases of such substances in excess of RQs during any 24-hour period, while EPCRA requires that notification for extremely hazardous substances to state and local agencies, the SERC and LEPC, respectively. As noted above, ammonia and hydrogen sulfide are such substances under both statutes, and they have the same RQ threshold: 100 pounds.

One Group’s Over-regulation is Another Group’s Under-regulation
Congress provided for citizen’s suits under the CWA, the CAA, and EPCRA. The idea is that government might not have the time or resources to fully enforce the law, and in the absence of governmental enforcement, individuals and advocacy groups may serve as “private attorneys general.” Successful actions may result in the award of their attorney’s fees and costs. Citizen’s suits have been brought against farmers for air emissions from animal waste, including some in Wisconsin, seeking farms to be permitted under the CAA and for monetary penalties for failure to notify of emissions in excess of RQs. Citizen’s suits may be precluded, however, where the EPA or its state-delegated agency, enforce those laws, which includes entering into settlement agreements that shield the participants from third party lawsuits.

A hallmark of citizen’s suits of that nature are generous emissions estimates as calculated by the expert witnesses hired by the advocacy groups. The National Academy of Sciences (NAS) concluded in 2003 that accurate AFO emissions estimates were needed to determine health and environmental impact and to assess control measures. See “Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs, National Research Council (2003).

In 2005 the EPA entered into a settlement agreement with representatives from the egg layers, broiler chickens, swine, and dairy cattle sectors. This 2005 Air Compliance Agreement allowed individual farmers from those sectors to participate by paying a fee and agreeing to allow their farms to be used for air emissions studies to develop science-based methods for estimating emissions that could be used at individual farms. In return the participating farmers would receive protection from citizen’s suits during the study period.

Over $15 million was spent on the National Air Emissions Monitoring Study (NAEMS) conducted by a consortium of land grant universities with strong agricultural programs, such as Purdue, Texas A&M, North Carolina State, and the University of California at Davis. A goal of the study would lead to the establishment of emissions estimation methods (EEMs) for the various sectors taking into account differences in climate and ventilation methods. So, for example, a dairy farm in Wisconsin would be able to use a science-based method to calculate emissions of ammonia, hydrogen sulfide, volatile organic compounds, total suspended particulates, and large and small particulate matter (PM10 and PM2.5) from its operation. The dairy farmer would then have a scientific basis on which to determine whether an air emissions permit is required under the CAA and whether notification should be made under CERCLA and EPCRA.

Who Needs Science, Anyway?
The land grant universities did their job, albeit slowly. It was up to the EPA, however, to develop the EEMs. The agency’s results can be described charitably as desultory. Thirty six EEMs were to have been developed. EPA developed eight draft EEMs, which it submitted to EPA’s Science Advisory Board (SAB) for review. The SAB expressed concerns about the validity of the drafts.  The remaining 28 EEMs have remained undeveloped. As for dairy, EPA developed a draft EEM for ammonia from dairy lagoons/basins, although the data combined dairy waste emissions with swine waste emissions. Planned EEMs for dairy for hydrogen sulfide and volatile organic compounds remain undeveloped. The whole story of the delays, failures, and erosion of institutional knowledge and expertise are told by the EPA’s Office of Inspector General. See “Eleven Years After Agreement, EPA Has Not Developed Reliable Emission Estimation Methods to Determine Whether Animal Feeding Operations Comply With Clean Air Act and Other Statutes”, Report No. 17-P-0396 (September 19, 2017). https://www.epa.gov/office-inspector-general/report-eleven-years-after-agreement-epa-has-not-developed-reliable-emission.

Exemption. What Exemption?
On the theory that Congress never intended animal waste emissions to be governed by the statutes it passed, the EPA proposed in December 2007 a rule that would exempt AFOs from CERCLA and EPCRA reporting obligations. See “CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste,” 72 Federal Register 73,700 (proposed December 28, 2007) (Proposed Rule). The EPA finalized the Proposed Rule on December 18, 2008. 73 Federal Register at 76,948 (Final Rule).

Both environmental groups and industry groups challenged various aspects of the Final Rule. On April 11, 2017, United States Court of Appeals for the District of Columbia issued its decision holding that Congress did not authorize the EPA to create a reporting exemption for AFOs. The exemption is void. By creating that exemption in the Final Rule, EPA exceeded its authority. Waterkeeper Alliance, et al. v. EPA, No. 09-1017 consolidated with No. 09-1104 (April 11, 2017).  (It should go without saying that Congress could create the exemption, but then that would require Congress to act.

Conclusion
We’ve now come full circle, back to the EPA’s interim guidance issued on October 26, 2017, in advance of the November 15, 2017, reporting date. For those AFOs that participated in the 2005 Air Compliance Agreement, another deadline will be set for some time most likely in 2018. Those that did not participate, however, should pay close attention to EPA’s press release, interim guidance, and continuous monitoring reporting forms which incorporate a simple (simplistic?) mathematical formula for estimating ammonia and hydrogen sulfide emissions.

AFOs that come close to 100 pounds of ammonia or hydrogen sulfide should follow the notification procedure under CERCLA. Will relying upon the EPA’s advice to skip notifying the SERC and LEPC effectively insulate AFOs from citizen’s suits under EPCRA based on EPA’s interpretation that animal waste air emissions fall under “routine agricultural practices” which are not encompassed by that statute? Will Congress step in and create the exemption that EPA asserts Congress impliedly intended when CERCLA was enacted back in 1980 and EPCRA in 1986? Moreover, the EPA has promised to release before the end of 2017 a best management practices manual for the reduction of animal waste emissions on which it has collaborated with the USDA. Owners and operators of AFOs should follow this issue closely.

Post Script
As this legal update is being readied for distribution, the latest word is that a postponement of the November 15 reporting date to mid-January 2018 might soon be announced. We are also informed that EPA intends to revise the written continuous release reporting form to delete reference to reporting under EPCRA. We believe that farmers should assume the November 15 date will remain firm and provide verbal notification to the NRC if they suspect their operations generate 100 pounds of ammonia or hydrogen sulfide per day, but refrain from submitting the written notification to the EPA Regional Office until the new continuous release reporting form becomes available.

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