Alan Bjerga: Hello, and welcome to the Dairy Defined podcast.
The Emergency Planning and Community Right-to-Know Act, aka EPCRA, was created in 1986. It’s intended to help communities plan for chemical emergencies. It requires industry to report on the storage, use, and release of hazardous substances to federal, state, and local governments.
But do farms really need to be a part of this? The EPA has been moving toward fewer burdens for farmers over the decades, but the process is slow, as in decades-in-the-making slow.
Joining us today is NMPF’s top regulatory expert, Clay Detlefsen. He has literally spent his two-decade career at NMPF fighting this. He will explain the fight and how this pace isn’t atypical in the critical, but sometimes glacially-moving regulatory landscape. Welcome, Clay.
Clay Detlefsen: Morning, and welcome.
Alan Bjerga: We don’t have two decades for this podcast, but I’m excited about this topic because this is a chance to really go into some weeds about things that when you’re a dairy farmer, you’re not thinking about this every day but it really does affect your life. Walk us through the history of these reporting requirements and what they mean for dairy.
Clay Detlefsen: Overall, the Emergency Planning and Community Right-to-Know Act is actually a very good law, and it was passed by Congress for a very good reason.
In 1984, the Union Carbide facility in Bhopal, India had a massive chemical leak of methyl isocyanate which killed nearly 3,000 residents almost instantly. In response to that, Congress said, “We can’t let that happen here. We need stronger laws that deal with chemical emergencies,” and they passed the Emergency Planning Community Right-to-Know Act.
EPCRA is a very complicated and comprehensive law. There’s many provisions in it. Some make a lot of sense, others don’t, depending on how they’re applied.
So for us, the dairy industry is subject to EPCRA 304, which is a emergency reporting obligation when chemicals are released into the environment. There’s also reporting obligations under EPCRA 311, EPCRA 312, and EPCRA 313.
I’ve spent years working on EPCRA 313 with a massive, massive undertaking back in the late 1990s involving the dairy industry, where ultimately our conflict with EPA wound up with EPA waiving over $100 million in fines against the dairy processing industry.
There’s a lot to EPCRA. And with this particular exception that we’re talking about, it is very, very limited. It only applies to 304 and only applies to air emissions from manure.
Dairy farms have lots of other obligations under EPCRA, including under Section 304. So if you have a anhydrous ammonia tank on your farm with couple thousand pounds of ammonia in it and you get a leak in that tank, you have to report that to the emergency responders, and that’s appropriate and sensible.
So EPCRA overall I think is a great law. It’s just been misconstrued by environmental activists and they’ve hijacked a good law for nefarious purposes, if you will.
Alan Bjerga: You talk about the $100 million of savings for processors, and you talk about EPA changing its interpretation. Again, this is all taking place over two decades, so when are some of these milestones happening?
Clay Detlefsen: Well, with respect to the issue at hand, the reporting of air emissions from manure, that issue really got off the ground around 2008 when EPA was promulgating the regulations for that. And they took a look at whether or not small amounts of ammonia coming off of animal manure would trigger a reporting obligation under that section of the law.
And the obligation’s triggered when there’s a release of 100 pounds or more of anhydrous ammonia or ammonia off of manure. By my calculations, that’s about 1,400 cows would trigger an obligation.
But EPA, when they were working through the regulation, made a determination that it was nonsensical to have that type of emission reports filed with the government. Nobody wanted to see them. The emergency responders didn’t want to see them, EPA didn’t want to see them, state officials didn’t want to see them. But the way the law was written, there is arguably a means to require that.
So EPA started it in 2008 with an exemption for air emissions from manure, and the activists didn’t like that and pretty much instantly sued EPA when that rule went final. It then kicked around the courts for practically a decade or so. And in 2017, the DC Court of Appeals made a determination that air emissions from manure were reportable under both EPCRA and another companion law called CERCLA.
That’s when National Milk got really into the weeds and worked very diligently to try and get those nonsensical reporting requirements reversed, and we did so via the regulatory path for EPCRA, and we worked with Congress to get an exemption under CERCLA.
Alan Bjerga: So you’re outlining this process where there’s a problem with the law and this interpretation, and people really don’t want to be dealing with farms of 1,400 cows or over, this wasn’t what this was intended for. You make your arguments, you win in court, EPA has a final rule that codifies all this in 2019. We’re not even to the pandemic yet, and it seems like this is done. So why are we talking about this in 2026?
Clay Detlefsen: Well, I’d like to think that this is done, but it’s obviously an ongoing issue. We got a congressional fix for CERCLA, we got a regulatory fix for EPCRA, but that wasn’t good enough for the activists. They want to apply this law to us, so they’ve been fighting it out in the courts.
Thankfully, last year, the federal courts ruled that the EPCRA exemption that we secured from EPA was in fact valid and appropriate. That is now under appeal, and the appeals court will likely have oral arguments on that issue this fall or perhaps next spring.
And after that I think we’ll have a decision and we’ll see where this goes. But the reason we’re still dealing with it is because the activists still want farms to report air emissions for manure, and it is a live issue in the courts. So until it’s resolved in the courts and then back at EPA, we’re going to have to continue talking about it, we’re going to have to continue the fight.
Alan Bjerga: Have you seen the activist climate on this issue evolve over the last 20 years? Do the approaches change? Do the arguments become different? Do they find different friends in the courts or the administration that they think they can work with? What are some of the adjustments that you have to make along the way?
Clay Detlefsen: The activists has actually been very consistent on this, and EPCRA is merely one of many laws that they try and hijack for their purposes.
Basically, they want information on the location and other parameters on farms around the country. And by targeting EPCRA, you’re going to go after typically the larger farms, and they will use that information to harass them in addition to imposing reporting obligations on those farms, which can be very costly if they’re not complied with.
EPCRA typically contains a very high daily penalty for a failure to report. So it’s an effective tool to harm farms, and the activists love it, and they’ve been trying to exploit it for decades.
Alan Bjerga: Now, getting back to this hearing that could be taking place this fall, will that really be the end of this once this is settled? It could go to the US Supreme Court in theory, I would think.
Clay Detlefsen: Right now, we have the rule, the exemption that we secured in 2019 under review at EPA. National Milk and our barnyard colleagues have been into EPA several times in the last two years to talk about getting that review of our exemption completed and basically have EPA reaffirm that that was a proper determination that they made.
So it’s live there, it’s live in the appeals court. I think we’re looking very good in the appeals court. Our position was joined by 24 or 25 state attorney generals who all found the notion of reporting air emissions for manure to be nonsensical, and they don’t want it. But until everything runs its course, it’s a live issue.
So my prediction on this is we will win in the Court of Appeals. The US Supreme Court will not take this up, therefore it will be done in the legal process. I think we’ll leverage that to go back to EPA and say, “Look, the courts have run all the traps on this and have consistently found that the exemption was properly executed. You need to reaffirm that and put this matter to bed once and for all.”
So that’s where I think it’s going to go. I think it’ll all go down next year, and very much looking forward to it. I mean, I really thought this issue was over in 2019 when we got the CERCLA congressional exemption and the EPA regulatory exemption, but the activists have managed to keep it alive. But there is a light at the end of the tunnel, I think it’s next year, and I think it’s going to be a favorable outcome.
Alan Bjerga: It does sound though, sometimes I often think about a quote from William Faulkner, the author, who said that, in a different context, that it’s not even that the past is repeated, it’s not even passed.
You, on addition to being NMPF’s regulatory chief, you’re also the organization’s chief counsel. I mean, you’re the lead lawyer for this organization. Is this your job? Do you spend your days dealing with things that have been going on for 20 years, really unable to show a lot of things to cheer about other than all of the bad things that don’t happen?
Clay Detlefsen: My job is making sure that regulatory agencies don’t do stupid things, and yes, it takes literally decades to stop things from happening. And as crazy as it is, most of the people that benefit from my work don’t even know I did my work.
Alan Bjerga: Well, I hope they all know a little bit more about some of the work that you’ve been doing today, Clay. This is a great opportunity to dive a little more deeply on something that it’s not part of the everyday life of a dairy farmer, but if certain folks had their way, it would become a very burdensome part very, very quickly.
Clay Detlefsen: Absolutely. And I appreciate having time with you today. This has been a lot of fun for me.
Alan Bjerga: Clay Detlefsen, he is the head of regulatory programs and the chief counsel for the National Milk Producers Federation, thank you for your time.
Clay Detlefsen: And thank you. Have a great day.
Alan Bjerga: And that’s it for Dairy Defined.
If you want to know more about the long and winding road of regulatory affairs, please visit our website at nmpf.org where we have many topic pages on key regulatory areas such as nutrition, food safety, and the similarly long-term fight against plant-based dairy imposters.
You can also subscribe to our Regulatory Register, which is our quarterly regulatory update. That’s at nmpf.org/subscribe. And finally, if you want to hear more of this podcast, please go to our website or go to Apple Podcasts, Spotify, and Amazon Music and search under the podcast name Dairy Defined. We will talk again soon.
