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. EPCRA requires state and local governments to use reported information to prepare their community for potential risks.
In 2008, EPA finalized a rule to exempt all agriculture from CERCLA and smaller 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. When Waterkeeper sued the EPA in 2009, the Obama administration spent eight years defending this Bush-era regulation. This exemption is not a partisan issue- it’s just common sense. In defending the lawsuit, the Obama EPA argued that CERCLA and EPCRA language is unambiguous because Congress never believed that farms would fall into the realm of regulated parties. However, in April 2017, the D.C. Circuit Court issued a decision to vacate the 2008 EPA agriculture exemption. The D.C. Circuit concluded that the language of CERCLA and EPCRA provides no room for the EPA to exempt agricultural operations.
With a court decision vacating EPA’s agricultural exemption, the agency’s options are limited. Currently, EPA is asking the court to hold off on issuing the mandate for 6 months to provide time to develop guidance, but buying time does not change the ultimate outcome- thousands of farms across the nation will be forced to report their daily emissions to the EPA, or face liability of up to $53,907/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 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 court decision, only operations with over 1000 cattle were required to submit reports. Now, operations with as few as 208 cattle are subject to these reporting requirements.
2. Cost and time-prohibitive. The costs of coming into compliance with CERCLA and EPCRA reporting requirements in will be significant to small farmers and ranchers across the nation.
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 bring lawsuits under the Clean Water Act. Additionally, NCBA predicts the misuse of this reported data to compel EPA to craft CAFO emissions regulations under the Clean Air Act.
4. National security vulnerability. Reports from nearly 100,000 agricultural operations will inundate the National Response Center with information, severely limiting the federal government’s ability to respond to real hazardous waste emergencies. Not only does this put the environment at risk, but public safety as well.