Beginning May 1, nearly 200,000 animal agriculture operations will be considered toxic "Superfund" sites without a legislative fix. On Thursday morning, the Senate environment and public works subcommittee on superfund, waste management and regulatory oversight held a hearing to look at a legislative solution -- S. 2421, the Fair Agricultural Reporting Method (FARM) Act -- to prevent it.
The Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) was enacted by Congress to give the Environmental Protection Agency the authority to respond to hazardous industrial pollution that threatens the environment and public health. In 2008, EPA finalized a rule to clarify that farms and ranches are exempt from air emissions reporting requirements under CERCLA.
The Emergency Planning & Community Right-to-Know Act (EPCRA) was enacted to ensure that parties that emit hazardous chemicals submit reports to their local emergency responders to allow for more effective planning during chemical emergencies.
In April 2017, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's 2008 exemption, putting nearly 200,000 farms and ranches under the regulatory reporting authorities enshrined in CERCLA and EPCRA.
The FARM Act maintains the exemption from reporting requirements for certain federally registered pesticides within CERCLA. It also exempts farms from the reporting requirements for air emissions from animal waste under CERCLA. With 12 Democrat co-sponsors and 21 Republicans, the bill offers a strong bipartisan start to a solution.
Sen. Debbie Fischer (R., Neb.), lead sponsor of the bill, said, “Animal manure is not a hazardous chemical emission,” and CERCLA was never intended to regulate normal agricultural practices. Fischer said the legislative fix codifies the original intent of the exemption and offers agricultural producers greater certainty.
Senate Environment & Public Works Committee ranking member Sen. Tom Carper (D., Del.) said he appreciates that Fischer’s staff agreed not to amend EPCRA in this bill. EPCRA reporting goes to local, state and emergency responders.
“This is an issue that was critical for many members on the Democrat side,” Carper said. “We have repeatedly heard concerns from state and local officials, public health experts and other members of our communities who want information about what is in their air. This bill seeks to strike a careful balance, and as a result, it enjoys broad bipartisan support. My sincere hope is that broad support can be translated into prompt legislative action.”
South Dakota rancher Todd Mortenson testified at the hearing about the impact of the reporting requirements on his farm, where he manages 1,295 cattle on 19,000 acres of land.
“The concentration of emissions is extremely low, because my cattle are spread over such a large area. However, CERCLA reporting requirements do not take concentration into account -- only release. It makes no difference whether my cattle are spread over 10 acres or 10,000 acres. If my 1,295 cattle emit over 100 lb. of ammonia or hydrogen sulfide per day, I am required to report their emissions to the U.S. Coast Guard and EPA.”
Mortenson also noted that reporting is no simple task but involves a three-step process that spans -- at a minimum -- one year.
The first step is an initial call to the Coast Guard, the agency tasked with coordinating emergency response for hazardous emergencies such as nation’s oil spills and chemical plant explosions. Fischer and Mortenson both noted during the hearing that, last fall, when it appeared reporting would be necessary, the Coast Guard was inundated with calls.
Dana Tulis, director of incident management and preparedness for the U.S. Coast Guard, indicated that early reports from livestock operations "increased (call volume) from approximately 100-150 calls per day (not associated with air releases from farms) to over 1,000 phone calls per day."
The Coast Guard further indicated the abundance of farm calls meant that "wait times have been up to two hours for calls, many of which require immediate attention," Mortenson testified.
The initial call to the Coast Guard is followed by two written reports sent to EPA over the span of one year. “These reports require specific, detailed information regarding my cattle’s emissions – information that I simply don’t have,” Mortensen said, adding that any time he looks to expand his herd, he also has to re-report his data.
Bill Satterfield, executive director of the Delmarva Poultry Industry, representing 1,800 members, said one 73-year-old producer-member was asked to submit her initial notification by email to the National Response Center, but she had never owned a computer or used email, so this was not an option for her.
During the hearing, some Democrats started to veer towards a focus on larger concentrated animal feeding operations (CAFO) and the harm of emissions from these operations. Those who testified had differing opinions about the amount of information available to calculate the actual emissions.
Satterfield cited a 2009 study by researchers at the University of Georgia that found that ammonia concentrations were lower as the distance from the poultry house increased. The researchers found that at no time during the study did the measured ammonia levels meet or exceed the Occupational Safety & Health Administration or EPA ammonia odor detection threshold values. “This study underscores EPA’s rationale for providing the exemption in 2008,” he said.
Satterfield said more research is needed to determine how to calculate emissions. EPA at one time had started collecting data, but its own scientific advisory committee determined that it didn’t have a good way to measure emissions. The poultry industry, as an example, must take into account many variables across each operation, including the age of the birds, breed, climates, humidity, etc. “One size does not work for everyone,” he said.
However, Mark Kuhn, Floyd County Supervisory from Iowa, noted that the Iowa Department of Natural Resources had begun to develop air quality rules at CAFO property lines. Subsequent legislation more friendly to CAFOs went from a proposed standard of 15 parts per billion for hydrogen sulfide to 70 ppb.