Proposed Rule to Exempt Animal Agriculture
from Emergency Release Reporting Requirements under CERCLA and EPCRA

NCBA Staff Contact: 

Tamara Thies, Chief Environmental Counsel
202-347-0228

tthies@beef.org

Since 2002, NCBA has been tasked to address Member concerns about whether pasture and open air cattle feeding operations with precipitation runoff retention ponds are required to comply with emergency release reporting requirements under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA, otherwise known as “Superfund”) and Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA).  To help make this determination NCBA conducted an extensive legal analysis of the issues and concluded that cattle operations should be exempt from these requirements.  On December 10, 2003, NCBA delivered a white paper containing the legal analysis to the EPA and requested its concurrence with our assessment.  In July of 2004, NCBA invited EPA staff on a tour of several feedlots around the United States to enable them to verify facts stated in our white paper.  NCBA was told shortly thereafter that EPA does in fact concur with our analysis and that a ruling would “soon” be issued.  While we all know that “soon” can mean different things to different people, EPA may have redefined the term since it took until December 28, 2007 for EPA to finally issue a proposed rule to exempt animal agriculture from these requirements.  Even with the delay, however, this is very good news for cattle producers.  We are hopeful the EPA will issue a final rule containing the exemption before the end of 2008.  A brief description of the issue is below.

The purpose of the emergency release reporting provisions of CERCLA and EPCRA is to target releases of “hazardous substances” that present substantial threats to public health and the environment and that require immediate response by state and local emergency response officials in order to prevent or minimize their adverse impacts.  The hazardous substances in air present at cattle operations potentially requiring release reporting under CERCLA and EPCRA are ammonia and hydrogen sulfide.  Reporting requirements for both of these substances is subject to the determination that a quantity of 100 pounds is emitted per 24-hour period.

NCBA does not believe Congress ever intended to require cattle producers to report these emissions from manure.  CERCLA was intended to provide for cleanup of hazardous waste sites like Love Canal and Times Beach.  To this end, Congress created the Superfund to tax the building blocks (such as petrochemicals, inorganic raw materials, and petroleum oil) used to make all hazardous products and waste.  Manure and urea are clearly not among these materials.  In addition, “[a]mmonia when used to produce or manufacture fertilizer or when used as a nutrient in animal feed” is specifically exempted from the tax due to the “unnecessary burden” it would place on agriculture.  A similar exemption is in place for pesticides.  In fact, the definition of “hazardous chemical” excludes “any substance to the extent it is used in agriculture operations.”

EPCRA was adopted in the wake of the 1984 Union Carbide disaster in Bhopal, India to force reporting of releases of hazardous chemicals and to enable emergency response from governmental authorities when appropriate.  In EPCRA, Congress specifically exempted “Any substance to the extent that it is used in routine agricultural operations or is fertilizer held for sale by a retailer to the ultimate customer” from the definition of hazardous chemical.  Because manure is used as a fertilizer, it fits squarely within this exemption.

Congress also specifically excluded from cleanup action “naturally occurring substances in their unaltered form, or altered solely through naturally occurring processes or phenomena.”  An example of a natural occurring substance cited in the Senate Committee Report is “animal wastes (e.g. beaver excrement)” which produce ammonia and hydrogen sulfide.  Emissions from manure, flatulence and belching fit squarely under this exclusion.

In addition to the statutory exclusions, the Superfund law allows the EPA to grant administrative reporting exemptions “for releases of hazardous substances that pose little or no risk or to which federal response is infeasible or inappropriate.”  Criteria EPA has used to exempt operations from release reporting requirements are:  (1) continuous low level emissions over large areas; (2) rapid dispersion in the environment; (3) acceptable exposure risk (Congress specifically recognized the low risk of low level continuous ammonia releases); and (4) infeasibility and inappropriateness of response.  Emissions from cattle operations fit squarely within these criteria for exemption.

Finally, the measurement of ammonia from flatulence and decomposition of manure and urea, and the measurement of any trace amounts of hydrogen sulfide from precipitation retention ponds are problematic at best.  Direct measurement is not possible or feasible  because the pollutant is dispersed in the air before measurement; and the wind speed and direction, pressure and temperature, stability and mixing characteristics of the atmosphere, characteristics of cattle feed, the breed of cattle, acidity and other conditions of the digestive tract, hydration, heat, and other variables all affect the emission and the ability to accurately measure it.  There are currently no accepted methods for reasonable quantification of these emissions from cattle operations.  Therefore, there is no sound or reasonable basis for making a regulatory determination about whether cattle operations do or do not exceed reportable quantities for these substances.

This law was intended to ensure that true emergencies created by toxic release of pollutants would be quickly and effectively identified so that timely response actions could occur.  Numerous state and local agencies charged with implementing CERCLA and EPCRA release reporting requirements have indicated to the EPA that they would not expect to ever respond to reports from animal agriculture operations and would find the paperwork associated with such reports burdensome and a hindrance to their abilities to respond effectively to the kinds of emergency releases that do constitute a public health concern.  Since it is inconceivable that emergency situations resulting from ammonia and hydrogen sulfide releases from animal manure would ever occur, an EPA exemption from these reporting requirements is appropriate.  In the event environmental groups appeal a final rule exempting animal agriculture from these requirements, NCBA will consider intervening on the side of EPA in such an appeal.