A letter from EPA to 19 Senators is the latest development in one of the most perplexing developments announced early in the Biden Administration. That decision involved animal operations and EPA’s June 2019 rulemaking under the Emergency Planning and Community Right-to-Know Act (EPCRA). Important to egg producers and animal agriculture, the policy was thought to be settled as a matter of law--animal operations need not report to state and local emergency authorities the ammonia emissions to the air from animals’ manure.

EPA’s 2019 rule amended the existing EPCRA rule to relieve livestock and poultry operations of this reporting requirement. The amendment to the rule was straightforward, since Congress passed the Fair Agricultural Reporting Method (FARM) Act in 2018 that amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to exempt reporting these air emissions to federal authorities. The CERCLA and EPCRA reporting requirements are linked in the statutes and removing the reporting requirement under CERCLA is understood by legal counsel as also removing it from EPCRA.

Environmentalists sued EPA over its 2019 EPCRA rule in the D.C. Federal District Court and in 2021 EPA asked the court to send the rule back to EPA for a possible rewrite. The agency failed to inform the agricultural litigants that were also party to the EPCRA suit and disregarded the CERCLA amendment in the FARM Act.

No one in EPA leadership has accepted responsibility for the original request to the court to send the rule back to EPA for a possible rewrite. Observers believe this happened in the very early days of the Administration before proper authorities and procedures were established and that it reflects the interest of some in EPA to respond to environmental justice advocates’ and citizen groups’ goal of forcing animal operations to report under EPCRA.

EPA has said it intends to conduct a new rulemaking to revise or rescind the exclusion from EPCRA. The 2019 EPCRA rule and its exclusion of ammonia emissions from manure from reporting requirements remains in effect for now.

Nineteen Senators (17 Republicans, 2 Democrats) sent a letter in April encouraging Administrator Reagan to preserve the longstanding policy of not requiring reporting under EPCRA. This week, EPA replied, simply restating that it intends to continue with this rulemaking to “consider” the requirements for reporting these emissions.

UEP is working closely with the other agricultural groups on this matter to protect the exclusion in the EPCRA reporting requirement and will keep members informed about further developments.