April 26, 2017
On April 11, the U.S. Court of Appeals for the District of Columbia Circuit, turned the clock back to 2008, erasing the Environmental Protection Agency (EPA) Farm Exemption Reporting Rule from the books. Confined animal feeding operations (CAFOs), along with other large scale livestock producers, are no longer exempt from environmental reporting regulations.
The Court's decision could potentially have a huge effect, according to Scott Yager, environmental council with National Cattlemen's Beef Association (NCBA). Annual reporting requirements will now fall on producers for the release of hazardous substances from animal waste to the air under 1980s regulations.
"There is no official formula to calculate," Yager said, relating to the reportable quantity (RQ) limits.
CERCLA and EPCRA both require notification of release of any hazardous substances, including ammonia and hydrogen sulfide. EPA has the authority to investigate and remediate the release of any hazardous substance, but the original rule was designed for emergency situations, Yager said. The 2008 rule allowed for an exemption from CERCLA reporting requirements for releases to the air, from animal waste, at livestock facilities. It also exempted all livestock operations, except for CAFOs, from EPCRA reporting requirements.
The Court's decision was a big win for environmentalists, and may lead to more EPA challenges. The groups believed the 2008 ruling "ran afoul of the underlying statutes, and was therefore outside the EPA's delegated authority," the court order reads.
Yager points out that environmental activists groups such as Waterkeeper Alliance, the petitioner on the court order, have been working to get a clearing house of CAFO and producer data for years and this order opens that door. According to Land Grant University research, producers with as few as 208 head may exceed the limits and required to report, Yager said. "That would include thousands of producers."
Waterkeeper Alliance recently sent a letter requesting a meeting with EPA's new administrator, Scott Pruitt. "As EPA attempts to carry out the Trump administration's "regulatory reform" priorities, it is becoming more and more apparent that EPA may only be seeking meaningful engagement with a narrow subset of stakeholders, most notably, big industry and rich, corporate entities," the group shared on its website, along with the letter.
The group, which boosts big name industry partners, including Levis, Toyota, Paul Mitchell and Patron, has a "Pure Farms, Pure Waters Campaign," which addresses what they consider, "the failure to regulate pollution from industrialized swine, poultry and dairy facilities that is devastating rivers, lakes and estuaries, while educating the public and decision makers about the impacts of and alternatives to industrialized livestock operations, supporting communities and local farmers, and advocating for sustainable food systems."
"This ruling is the latest turn in Earthjustice's advocacy on behalf of environmental and animal advocacy groups including Waterkeeper Alliance, Humane Society of the United States, Sierra Club, Center for Food Safety and Environmental Integrity Project," the group wrote in a press release following the Court order.
While it is still unclear whether EPA will begin investigating these releases, it is potentially the beginning of more red-tape for producers. EPA did indicate to the Court that it believed "in most cases, a federal response is impractical and unlikely."
The court order can be seen at https://www.cadc.uscourts.gov/internet/opinions.nsf/2E91F70B0AF28BBE852580FF004E33FF/$file/09-1017-1670473.pdf.
The order, effective 45 days from the judgement, gives producers until mid-May to find a workable solution. There is a potential for high violation penalties, along with a citizen suit provisions, which allows private rights of action by individuals or environmental groups for alleged violations.
NCBA and other ag organizations are working together to come up with a solution.
"At this point, nothing is off the table yet," Yager said. Options include a judicial appeal, and EPA administrative fix, or a legislative route on the Hill. "From a practical point, [producers] should hold tight as far as reporting."
But Yager said it's important to reach out to legislative representatives now, and share concerns about this court order.
South Dakota CAFO Regulation Update
In addition to the national CAFO court ruling, South Dakota's Department of Environment and Natural Resources (DENR) made some changes to CAFO reporting in the state. The General Water Pollution Control Permit has been reissued and is now effective.
There are 429 livestock operations covered under the existing general permit for concentrated animal feeding operations. "While the existing permit has been successful in protecting water quality in South Dakota, those operations now have one to four years to apply for and obtain coverage under the new reissued permit," said Kent Woodmansey, administrator of DENR's Feedlot Permit Program. "DENR will send letters to all permitted operations with information about the process and deadlines for applying."
Livestock operations need coverage under the general permit if they are a large concentrated animal feeding operation, or are required to obtain state permit coverage by units of local government. Producers may also voluntarily apply for and obtain permit coverage. Large concentrated animal feeding operations confine at least 1,000 beef cattle, 700 dairy cows, 2,500 swine weighing 55 pounds or more, 10,000 swine weighing less than 55 pounds, 500 horses, 10,000 sheep, 55,000 turkeys, or 30,000 geese. Large concentrated chicken and duck operations range between 5,000 to 125,000 animals based on the type of operation and whether a liquid or solid manure containment system is used.
More information about the reissued general permit can be found on DENR's Feedlot Permit Program website at http://denr.sd.gov/des/fp/cafo.aspx