Action Alert
Large CAFOs Must Notify State and Local Emergency Responders about Ammonia
and Hydrogen Sulfide Emissions Shortly After January 20, 2009
On December 12, 2008, the U.S. Environmental Protection Agency issued a final
rule clarifying that large concentrated animal feeding operations (CAFOs) which have
1000 head of cattle or more must notify state and local emergency response officials
about ammonia and hydrogen sulfide emissions from their operations under the
Emergency Planning and Community Right-to-Know Act (EPCRA).
Such notification must first be made by telephone to the community emergency
coordinator for the local emergency planning committees (LEPC) for any area likely to
be affected by the release, and to the state emergency response commission (SERC) of
any state likely to be affected by the release, followed by a written report to these entities
within 30 days of the telephone call.
NCBA strongly recommends that notification should occur shortly after
January 20, 2009.
These are the only actions that must be taken by large CAFOs under this law
unless there is a “statistically significant” increase of emissions of these substances, or if
there is a change in composition or source of the release. Such changes would require
telephone and written notification of the same entities listed above.
NCBA is working with our land grant universities to quickly get the best available
scientific assessment of ammonia and hydrogen sulfide emission factors that can be used
for this notification. EPCRA requires that a “lower bound” and an “upper bound”
emission level be reported. These levels can be established by multiplying the emission
factor by the expected lowest number of head of cattle in a large CAFO during the year
(lower bound), and by multiplying the emission factor by the highest number of head of
cattle currently permitted for the CAFO (upper bound). NCBA is putting together a short
template form for our large CAFOs to use for reporting these emissions. The form and
other detailed information will be available during the week of January 4, 2009.
Overview
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 pleased when on December 28, 2007 the EPA issued a proposed rule to exempt all of
animal agriculture from release reporting requirements under CERCLA and EPCRA.
Unfortunately, in the final rulemaking the EPA bowed to activist pressure and decided
not to exempt large CAFOs from having to file release notifications with state and local
emergency response officials (LEPCs and SERCs) under EPCRA. The good news is that
in the same rulemaking the EPA did exempt animal agriculture from having to file
additional reports to the National Response Center under CERCLA. In additional good
news, the EPA clarified that “continuous release reporting” is available for use by large
CAFOs. Continuous release reporting enables CAFOs to file a one-time report because
their emissions are continuous, instead of possible daily reports, as long as there is not a
statistically significant increase in a release, or there is a change in the composition or
source of the release. A “statistically significant” increase in a release “is an increase in
the quantity of the hazardous substance released above the upper bound of the reported
normal range of the release.” If there is a statistically significant increase or a chane in
the composition or source of the release, an additional telephone call immediately must
be made to LEPCs and SERCs, and a report must be filed within 30 days thereafter. The
EPA intends to issue a guidance to assist operations that are required to submit reports.
Background
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 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. Research data shows that large CAFOs emit above this
reportable quantity level.
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 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. Nevertheless, our operations must provide emergency
response officials with estimates on emission levels that have a sound technical basis.
Land grant university researchers have been studying ammonia and hydrogen sulfide
emissions from cattle operations for several years. NCBA is awaiting their best judgment
about emission levels that members can use when filing release reports.
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
would 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. Nevertheless, some states and anti-CAFO activists convinced the EPA
that emergency response officials should be able to receive this information, and that the
“public may have a separate use for the notifications.” Unfortunately, the EPA decided
to bow to these views and require reporting of these emissions under EPCRA.
NCBA will provide during the week of January 4, 2009 a short template form and
other detailed information for our large CAFOs to use for reporting their emissions of
ammonia and hydrogen sulfide to LEPCs and SERCs.