One just can’t make this stuff up. Earlier this month, the U.S. Environmental Protection Agency (EPA) got a stay until May 1 of a court mandate requiring farmers to report government-declared “dangerous gasses” released by decomposition of manure.
Under the U.S. District Court of Appeals ruling, these so-called “hazardous substance releases” – which have been occurring since livestock appeared on earth – will have to be reported to first responders. The only question is when.
I take it back. There are some obvious additional questions: How will the first responders protect us from these dangerous agricultural releases? What emergency response protocol springs into effect when they get notified – not of a sudden release happening after a train wreck or a plant explosion – but of a constant release that can’t even be quantified except by a formula taking into consideration the number of animals, the weather, the climate and the geographical area that manifests the hazard? Because “[t]he purpose of the notification is for federal, state, and local officials to evaluate the need for an emergency response to mitigate the effects of the release to the community.”
This is not the same issue as manure management to protect groundwater quality, which is a serious and widely-supported policy much more in line with the purposes of critical environmental protection. A 2005 spill in Lewis County, New York, for instance, is estimated by the state’s Department of Environmental Conservation to have killed 375,000 fish in the Black River and was judged instrumental in hastening promulgation of state waste management rules.
The EPA, lately much-criticized for mission creep, ruled that emergency releases of agricultural ammonia and hydrogen sulfide – which have been byproducts of farming since farming was a thing – were not something they needed to be especially concerned about under either the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as “Superfund,” or the Emergency Planning and Community Right-to-Know Act (EPCRA). Thus, agricultural releases were exempted from the final rule when it was adopted in 2008.
The EPA was subsequently sued by environmental and animal rights groups who are on a mission to wipe out livestock farming and were disturbed that agriculture got a pass on reporting these discharges. The final rule was struck down last year after several years of litigation. When the court’s ruling takes effect, the EPA’s regulatory exemption will no longer apply.
In 1978, President Jimmy Carter declared a landfill near Niagara Falls, New York, known as “Love Canal” a “federal emergency area.” William T. Love was an entrepreneur who wanted to dig a canal to join the two levels of the Niagara River that were separated by Niagara Falls. The original project failed after a mile of digging, which produced a trench 10 feet deep and 15 feet wide. The U.S. Army apparently buried some waste from chemical weapons experiments there, and then from 1947 to 1952, Hooker Chemical and Plastics Corporation filled it up with toxic waste. Eventually hundreds of homes and a school were all built on several layers of dirt sitting on top of 21,000 tons of toxic waste poured into the spot. When the school building foundation punctured the copper liner, people began to get sick, and around 800 families were relocated over the next couple of years.
CERCLA was enacted two years later to authorize the government to compel responsible parties to remediate toxic sites. Fees were instituted on chemical and petroleum industries to pay if the responsible parties could not, or failed to, clean up. In the aftermath of the worst industrial accident in modern history – occurring at the Dow Chemical /Union Carbide pesticide plant in Bhopal, India, in 1984, which left thousands dead from the gasses leaking out of the plant – the CERCLA law was expanded by the Superfund Amendments and Reauthorization Act (SARA). Title III of this Act, signed in 1986, is the community right-to-know law.
These laws provide important protections to the public and tools to mitigate some extremely damaging assaults on the natural environment. The need for these laws was widely-appreciated at the time and to this day. These fundamental environmental protections and remediation efforts brought back Lake Erie, cleaned up Superfund sites, reclaimed strip-mined areas and made thousands of river-miles swimmable and fishable. These real accomplishments are just not comparable to tweaks in deference to people who just don’t like the idea of farming livestock. The comparison makes this latest skirmish all the more pernicious.
I can’t blame the EPA because this is not their doing. In fact, they seem to be doing everything they can to be helpful, including allowing an annual report of “continuing emissions” instead of daily reporting. They are not requesting that producers monitor or reduce emissions.
A bipartisan group of senators including Sens. Joni Ernst, R-Iowa, Deb Fischer, R-Neb., Joe Donnelly, D-Ind., John Barrasso, R-Wyo., Mike Rounds, R-S.D., Pat Roberts, R-Kan., Heidi Heitkamp, D-N.D., Chris Coons, D-Del., and Tom Carper, D-Del., introduced a bill on Valentine’s Day to protect farmers, ranchers and livestock markets from these additional EPA reporting requirements. In press releases describing the introduction of the Fair Agricultural Reporting Method (FARM) Act, the words “common sense” were used repeatedly.
In the meantime, you will not be shocked to hear that while the EPA estimates that only 44,900 producers will meet the reporting threshold, the U.S. Poultry and Egg Association estimates that 141,000 poultry farms will have to report, and the National Cattlemen’s Beef Association thinks that over 68,000 of its members will be filling out the forms once released. But have no doubt that there will be an inevitable dilution of real environmental warnings to the community that are lost in the noise when you start notifying first responders that there is sometimes a lot of manure on farms with hoofstock or poultry.