Cornhusker Economics November 8, 2017Livestock Air Emission Requirements
Federal environmental laws require the reporting of emissions of hazardous substances beyond EPA-established minimum amounts. EPA has established a 2008 reporting exemption for livestock operations smaller than large CAFOs (concentrated animal feeding operations). Environmental groups challenged the EPA livestock exemption. On April 11, 2017, the D.C. federal court of appeals invalidated the livestock reporting exemption. Reporting requirements will go into effect November 15, 2017, unless the court grants EPA an additional time extension for implementing the livestock reporting program.
What are the federal chemical release reporting requirements? The 1980 federal Superfund law requires reporting to federal officials of releases of hazardous chemicals above EPA established minimum amounts. The 1986 federal Community Right to Know Act requires reporting to state and local emergency responders of similar releases.
Was there any ag exemption? Not specifically in either statute. In 2008 EPA adopted a regulation exempting livestock operations from Superfund reporting and limited Right to Know livestock reporting to larger livestock operations called large CAFOs.
So what happened? The ag exemption was challenged in court by environmental groups, and the court ruled this April that the ag exemption was not authorized by either statute.
That kind of messed things up for livestock producers! Yes, it did. Long story short, EPA has interpreted the Right to Know Act as not applying to any farms, so Superfund reporting requirements apply to any livestock operations that emit more than the minimum amounts.
What chemicals are released by livestock operations? The principal chemicals are ammonia and hydrogen sulfide, and the minimum daily release amount that triggers reporting is 100 pounds per day for each chemical.
Large CAFOs currently report releases of these chemicals? Correct. The EPA reporting regulations allow annual reporting of continuous releases, where the daily amount released doesn’t vary significantly throughout the year. This means that after the initial reporting, most livestock operators only need to update annually as opposed to reporting daily.
What is the cutoff for large CAFOs? For cattle and swine, the minimum numbers are 1,000 beef cattle or cow-calf pairs; 700 mature dairy cattle; 2,500 swine; and 10,000 swine weighing less than 55 pounds. So reporting has not been required for smaller cattle or swine operations before now.
If the new livestock reporting requirements do take effect, who would now be required to report? If you have 400-450 beef cattle you should be prepared to report. You should also check with your state livestock association for additional information.
How would I report? The EPA has published a reporting guidance document that takes you step by step through the reporting process. Essentially you (1) make one phone call to get a reporting identification number and make your first report; (2) then you submit a written report to EPA within 30 days; (3) then you submit an annual update written report if things haven’t changed much. If they have changed you may need to report the changes immediately (Steps 1 and 2).
Where do I get the EPA reporting guidance? https://www.epa.gov/epcra/cercla-and-epcra-reporting-requirements-air-releases-hazardous-substances-animal-waste-farms
How do I fill out the forms? The EPA guidance has links to the written forms and examples of filled out forms. The beef and swine sample forms were prepared by UNL professors Rick Koelsch and Rick Stowell.
What is the current status of the livestock reporting program? Since the court of appeals invalidated the livestock reporting exemption in April, it also has granted EPA requests to delay the court’s order. The current delay expires November 15, 2017. On October 30, 2017. EPA requested an extension of livestock reporting requirements to mid-January 2018. As of this writing the court has not yet ruled on the EPA request.
Commentary: I expect the court to grant the EPA request to delay implementing the livestock reporting requirements. Courts routinely grant these requests if the EPA has made a good faith effort to move matters forward. Here the EPA has published the very useful livestock reporting guidance, and is developing reporting forms that would make it easier for livestock operations to comply with the reporting requirements. In its latest request for additional time, EPA indicated that it hoped to complete simplified livestock reporting forms by January 2018. Under these circumstances, it would be very surprising for the court to not grant the EPA request for more time. However, livestock producers should go ahead and download the EPA livestock reporting guidance, download the relevant forms and sample forms, and prepare themselves to report on November 15, 2017, if the court does not grant the EPA request for more time.
I also expect EPA will work with Congress and livestock groups to put some kind of agricultural reporting exemptions into law. But whether that can be accomplished, and within what time frame, remains to be seen.
J. David Aiken
Water & Agricultural Law Specialist
Department of Agricultural Economics
University of Nebraska-Lincoln