NMPF regulatory staff gained a years-earned win last month when the Environmental Protection Agency decided to solicit information on a proposed end to an exemption from reporting ammonia and hydrogen sulfide air emissions from manure under the Emergency Planning Community-Right-to-Know Act (EPCRA) rather than to simply overturn that exemption. The somewhat surprising move all but ensures that the Biden Administration will not overturn the exemption, which benefits dairy, before the end of the presidential term that ends in 2025.
NMPF and animal agriculture groups since 2019 have worked hard with EPA to promulgate the EPCRA exemption after securing a Congressional exemption under the FARM Act in March 2018 for the same type of reporting under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPCRA and CERCLA are separate but interrelated environmental statutes. Both exemptions remain in place today—but while the CERCLA exemption would require Congress to overturn the CERCLA exemption, EPA retains the authority to overturn the EPCRA exemption.
Environmentalists seized on an opportunity to overturn the EPCRA exemption by modifying a complaint in ongoing litigation which challenged the final EPCRA rule. After the Biden Administration in January 2021 issued an Executive Order that called upon EPA to immediately review federal regulations issued over the past four years for consistency with national objectives, such as confronting the climate crisis, EPA that November asked the courts to return the final EPCRA rule to EPA for further review.
EPA then allegedly promulgated a proposed rule to eliminate the EPCRA exemption which was then sent to the Office of Management and Budget (OMB) for review, where it sat for an extended period. During that period NMPF and other ag groups repeatedly asserted to EPA and OMB that revoking the exemption would be inappropriate and defy common sense by requiring useless emissions reports that would serve no logical purpose other than to harass farmers—even while knowing the revocation was very much on the table.
Instead, EPA has issued an Advanced Notice of Proposed Rulemaking, which solicits information pertaining to requests comments to assist in potentially developing regulations to reinstate the reporting of animal waste air emissions at farms under EPCRA. The agency is soliciting comments under five general categories: health impacts; implementation challenges; costs and benefits; small farm definition and potential reporting exemption; and national report on animal waste air emissions.
The bottom line is that while the issue is far from over, EPA did not have sufficient information to justify a proposed regulation to end the exemption and therefore had to switch to information collection. NMPF and other ag groups will continue to fight on this long-lived, cumbersome issue.
