USAgNet discussed industry groups request for new beef labeling requirements.

The Houston Chronicle reported on a provision in the 2018 Farm Bill that would remove certain rules on EPA pesticide review.

The Western Producer discussed farmer reaction to potential trade war with China and proposed subsidies.

The Press-Enterprise reported on six California bills aimed at reducing plastic waste.

Bloomberg discussed the impact of Chinese sorghum tariff on Kansas agriculture.

 

Since the Clean Water Act was passed in 1972, there has been extensive debate over which waters may be regulated as waters of the United States under the act. Yesterday, Bob Wilkinson explained how this issue came to a head in a recent 9th Circuit opinion and how, in response, EPA is requesting comments on whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow with a direct hydrologic connection to the jurisdictional surface water may be subject to regulation under the Clean Water Act. This is important to you because farmers, manufacturers, and anyone who conducts activities that release pollutants to groundwater will be affected by whether and how EPA clarifies its position regarding whether these discharges are subject to regulation. Our Environmental team blogged about this topic yesterday, please read more here.

Today, attorney Megan Caldwell blogged about two recent agency enforcement memoranda impacting the enforcement of environmental violations. You can read the blog post here. This is important to you, as it may change your company’s approach to compliance with certain agency guidance documents, as well as your emphasis on relationships with state environmental agencies versus U.S. EPA.

On February 1, 2018, the U.S. Court of Appeals for the D. C. Circuit issued a stay delaying the implementation of a rule that will require farmers to estimate and report emissions from animal waste. Farmers will now have until at least May 1, 2018 before they are required to report their emissions to the U.S. Environmental Protection Agency (EPA).

Last April, the D.C. Circuit invalidated a rule that exempted livestock operations from reporting emissions of more than 100 pounds per day of either ammonia or hydrogen sulfide under CERCLA. Prior to the court’s decision, only animal feeding operations that qualified as concentrated animal feeding operations, or CAFOs, were required to report under the emissions reporting rule. Following the effective date of the new rule, an estimated 63,000 small- and medium-sized farms will also be required to estimate and report their emissions.

This is the third stay that the D.C. Circuit has issued at EPA’s request. EPA needs the additional time to inform farmers about the pending rule, provide guidance on calculating emissions, and finalize a reporting form specifically tailored to farmers. It is especially important that farmers understand their obligations under this new rule because, once the court issues the mandate, farmers that fail to report could face fines and suits from citizen groups alleging noncompliance.

Our environmental attorneys can help potentially affected farm owners and operators understand and meet these release reporting requirements. For more information on how these regulations may impact your operation, please contact Robert Wilkinson or Megan McLean of Husch Blackwell’s Environmental team.

We previously discussed the D.C. Circuit’s decision in Waterkeeper Alliance v. EPA, 853 F.3d, to strike down EPA’s regulation that exempted farms from air pollution reporting requirements for releases of hazardous substances from animal wastes. In October 2017, EPA petitioned the D.C. Circuit to stay the mandate in that case. On November 22, the D.C. Circuit granted EPA’s motion to stay the mandate until January 22, 2018.

The stay gives farmers an additional two months before they have to start reporting. It also provides an opportunity for farmers to familiarize themselves with EPA’s new guidance which helps farmers calculate emissions from beef, dairy, equine, swine and poultry operations.

 

Last week, the U.S. Environmental Protection Agency (“EPA”) filed a motion in the D.C. Circuit asking the court to delay the reporting requirement until 2018. Unless the motion is granted, farms with reportable releases of hazardous substances from animal waste must begin reporting those releases next Wednesday, November 15, 2017.

On November 9, the National Pork Producers Council and the United States Poultry and Egg Association filed a motion in support of EPA’s request to postpone the reporting requirement. According to the motion, the additional time is needed for three reasons: (1) the new emissions estimation and reporting requirements are causing farmers confusion and concern; (2) the National Response Center is not yet equipped to handle the thousands of telephone reports from farmers reporting ammonia emissions; and (3) EPA needs additional time to finalize its emissions calculation and reporting guidance.

The same day, Waterkeeper Alliance filed a motion in opposition on the grounds that EPA has already issued sufficient guidance for farmers to comply with the emissions reporting requirements. Waterkeeper Alliance also asked the D.C. Circuit to clearly state in the mandate that it’s April 2017 Waterkeeper Alliance v. EPA opinion does not permit the EPCRA interpretation EPA announced in its interim guidance.  Finally, Waterkeeper Alliance asked the D.C. Circuit to retain jurisdiction over the matter for three years to ensure that EPA implements and enforces the reporting mandate.

On Monday October 30, the U.S. Environmental Protection Agency (“EPA”) filed a motion Monday in the D.C. Circuit asking the court to delay the reporting requirement until January 18, 2018. Unless the motion is granted, owners or operators of farms with reportable releases of hazardous substances from animal waste must begin reporting those releases on November 15, 2017.

Since April, EPA has been developing guidance to help farms come into compliance with requirements to report certain releases of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and Emergency Planning and Right-to-Know Act (“EPCRA”).

With regard to CERCLA reporting, last week, EPA released a preliminary guidance and solicited public input. You can read our analysis of the preliminary guidance here. In the motion to delay the reporting requirement, EPA requests additional time to finalize its guidance and incorporate feedback received. EPA is also developing a streamlined continuous release reporting form designed specifically for farms.

With respect to EPCRA reporting, EPA issued a preliminary interpretation of EPCRA provisions as excluding farms that use substances in routine agricultural operation from EPCRA reporting requirements. Under the statute, only facilities where “hazardous chemicals” are “produced, used, or stored” are required to report. Excluded from the definition of “hazardous chemical” is “any substance to the extent it is used in routine agricultural operations.” In its preliminary interpretation, the EPA states that “the feeding and breeding of animals, as well as the expected handling and storage of the animals’ waste, would…be considered a routine agricultural operation,” exempt from EPCRA’s reporting requirements. EPA plans to initiate a rulemaking formalizing this interpretation within the next two months.

Our environmental attorneys can help potentially affected farm owners and operators understand and meet these release reporting requirements. For more information on how these regulations may impact your operation, please contact Robert Wilkinson or Megan McLean of Husch Blackwell’s Environmental team.

We previously discussed the decision of the D.C. Circuit in Waterkeeper Alliance v. EPA, 853 F.3d, striking down EPA’s regulation that exempted farms from air pollution reporting requirements for releases of hazardous substances from animal wastes and EPA’s petition to stay the mandate in that case until late January 2018.  The D.C. Circuit responded to that petition on August 16 and ordered the issuance of the mandate be stayed through November 14, 2017. The Court’s order stated that “if necessary, EPA may request an extension of the stay” but clarified that any request for an extension should include a status update on EPA’s efforts to develop guidance.  Unless an additional stay is granted by the Court, owners or operators of farms with reportable releases of hazardous substances from animal waste must begin reporting those releases on November 15, 2017.

On October 26, EPA issued guidance for reporting releases of hazardous substances from animal waste.  The EPA guidance notes that the typical hazardous substances released from animal waste include ammonia and hydrogen sulfide and that release of 100 pounds or more of either substance from an entire farm over a 24 hour period will trigger the reporting obligation.  The EPA guidance also provides a number of tools for calculating such emissions from beef, dairy, equine, swine and poultry operations.

Our environmental attorneys can help potentially affected farm owners and operators understand and meet these release reporting requirements. For more information on how these regulations may impact your operation, please contact Robert Wilkinson or Megan McLean of Husch Blackwell’s Environmental team.