Monday, February 5, 2018

Manure Air Emission Rule

Court of Appeals Stays Manure Emission Rule Until May 1st

Washington—The enforcement of an air quality mandate requiring cow-calf producers to report manure air emissions to the EPA was stayed again by the District of Columbia Court of Appeals until May 1st.

The stay order was signed by Justices Stephen Williams, a Reagan appointee, and Sri Srinivasan, an Obama appointee.

Today’s stay, the third granted by the court at the EPA’s request, delays a mandate for farmers to report emissions from decaying manure under the Comprehensive Environmental Response or Superfund law.

The mandate has a long a tortured history.

Starting back in December 2008, during the last hours of the George W. Bush administration, the EPA issued a final rule that exempted most beef and dairy operations from certain requirements under the Superfund law. The rule exempted farms releasing hazardous substances from animal waste to the air above threshold levels from reporting under CERCLA. For Superfund reporting, the rule exempted reporting of such releases if the farm had fewer animals than a large CAFO or concentrated animal feeding operation.

In short, the small farms and cow-calf operations were spared from what amounted to an unreasonable and expensive mandate and a regulatory nightmare.

While the Obama EPA took aggressive stances on a number of issues, the agency argued that the intent of CERCLA was not meant to be applied to animal agriculture. Clearly, the EPA had better things to do than send its employees out to measure the smell coming off of individual cow-pies in the pastures of Nebraska and Wyoming and Idaho.

With Trump EPA’s rollback of WOTUS, it’s not likely that the agency will enforce the mandate.

But citizen groups like the New York-based Water Keeper Alliance challenged the validity of the final rule in the Court of Appeals. The group argued that the EPA didn’t have a right to issue an exemption to CERCLA for agriculture. Last spring the Court struck down the final rule, eliminating the reporting exemptions for farms.

In the meantime, the EPA bought time from the Court so it could develop guidance rules and regs to help farmers understand reporting obligations. So far no reporting is required until the Court issues its order, or mandate, enforcing the April 11, 2017, mandate.

Now farmers and ranchers can do nothing but wait and see if the Court decides to continues the stay or start requiring small farms and ranches reporting manure air emissions.

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