MSCA Joins Call for Support of the Bipartisan Long-Costa Amendment Clarify that Family Farms are NOT Hazardous Waste Sites

MSCA Joins Call for Support of the Bipartisan Long-Costa Amendment Clarify that Family Farms are NOT Hazardous Waste Sites

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was enacted to provide for cleanup of the worst industrial chemical toxic waste dumps and spills, such as oil spills and chemical tank explosions. CERCLA has two primary purposes: to give the federal government necessary tools for prompt response to problems resulting from hazardous waste disposal into water and soil, and to hold polluters financially responsible for cleanup. The Emergency Planning and Community Right-to-Know Act (EPCRA) requires that parties who emit hazardous chemicals submit reports to their local emergency planning offices, thus allowing local communities to better plan for chemical emergencies.

In 2008, the EPA finalized a rule to exempt all agricultural operations from CERCLA reporting and small operations from EPCRA reporting requirements, recognizing that low-level continuous emissions of ammonia and hydrogen sulfide from livestock are not “releases” that Congress intended to regulate. When Waterkeeper sued EPA in 2009, the Obama administration spent eight years defending this Bushera regulation. In defending the lawsuit, the Obama EPA argued that CERCLA and EPCRA language does not explicitly exempt farms because Congress never believed that the continuous emissions of agricultural operations would fall into the realm of regulation. However, in April 2017, the D.C. Circuit Court issued a decision vacating EPA’s 2008 exemption, concluding that these statutes are unambiguous.

Not only does this court decision have the potential to bring nearly 100,000 farms and ranches under federal regulatory authority, but will also likely put our nation’s environmental and public health at risk. Currently, Hazardous Substance release reports are taken by the National Response Center (NRC), run by the Coast Guard. This department has averaged 28,351 reports per year over the last eight years. When farms from across the nation are suddenly in violation of CERCLA reporting requirements, reports from over 100,000 agricultural operations will inundate the NRC. This increase of over four times the average annual amount, in less than one week, could potentially prevent the Coast Guard from responding to actual hazardous waste emergencies, entirely defeating the primary purposes of CERCLA.

Following the D.C. Circuit’s decision, the EPA’s options are limited. The court recently granted a stay for three months, providing time for the agency to develop administrative guidance, but buying time does not change the ultimate outcome: thousands of farms and ranches across the nation will be forced to report their daily emissions to the EPA or face liability of up to $53,907 per day. Now, it is up to Congress to ensure that the EPA is not required to implement this overly burdensome court decision.

MSCA urges Congress to confirm that it never intended to regulate manure under CERCLA or EPCRA by supporting the bipartisan appropriations provision introduced by Representatives Billy Long (R-MO) and Jim Costa (D-CA) attached HERE.

CERCLA and EPCRA Background:

In 1980, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was enacted in response to serious environmental and health risks posed by industrial pollution. The Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 was created to help communities plan for chemical emergencies, by requiring that hazardous waste emissions be reported to local emergency planning offices. 

In 2008, EPA finalized a rule to exempt all agricultural operations from CERCLA reporting and small operations from EPCRA reporting requirements, recognizing that low-level continuous emissions of ammonia and hydrogen sulfide from livestock are not the “releases” that Congress intended to limit. However, in April 2017, the D.C. Circuit Court issued a decision vacating the 2008 EPA agriculture exemption, concluding that these statutes provide no room for the EPA to exempt agriculture.

Recent Action:

Following this court decision, the agency’s options are limited. EPA recently asked the court to delay issuing its mandate for six months, providing time for the agency to develop administrative guidance, but buying time does not change the ultimate outcome-thousands of farms and ranches across the nation will be forced to report their daily emissions to the EPA or face liability of up to $53,907 per day. Now, it is up to Congress to ensure that the EPA is not required to implement this overly burdensome court decision.

The court ruling poses the following immediate concerns:

1.       Over-regulation. Agricultural operations across the nation, ranging from small cow/calf ranchers to large feedlots, are now subject to CERCLA and EPCRA reporting liability. Prior to the D.C. Circuit’s court decision, only operations with over 1,000 cattle were required to submit reports. Now, operations with as few as 208 cattle will be subject to reporting requirements.

2.       Cost and time-prohibitive. The costs of complying with CERCLA and EPCRA reporting requirements will be significant to small farmers and ranchers across the nation.  Not only will operations be required to make emissions determinations, but spend time completing and submitting tedious reports.

3.       Exposure to citizen lawsuits. NCBA anticipates that environmental groups will use publicly available CERCLA reports to create a national list of farm locations, and use this list to bring lawsuits under the Clean Water Act and Clean Air Act. Additionally, NCBA is concerned that the misuse of this information will lead to unnecessary and overly burdensome regulation of Animal Feeding Operations.