Below are brief updates on some key environmental topics that are important to U.S. egg producers.

Outlook for U.S. EPA Under Administrator Wheeler

Several producers have inquired as to whether the change in the leadership at EPA, where Andy Wheeler is now serving as the administrator after the departure of Scott Pruitt, is going to lead to any significant differences in direction for EPA.  While it is still too early to answer this question definitively, early indications are that EPA will stay the course on the high-profile initiatives that began under Administrator Pruitt.  There certainly is the chance that in the years to come, Wheeler will undertake some initiatives that were not part of Pruitt’s agenda.  The core activities on measures like the WOTUS rule, the CERCLA-EPCRA rule, methane emissions standards, vehicle mpg standards, and several others will still be the top priorities of the agency under Wheeler.

Proposed CERCLA-EPCRA Rule Coming; Comments will be Submitted

In August, EPA published a final rule revising the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) reporting regulations to reflect the legislative amendment to CERCLA passed by Congress earlier this year in the FARM Act.  The FARM Act excluded the air emissions from animal operations’ manure from the federal reporting requirements under CERCLA.  This CERCLA measure has the practical effect of also excluding animal agriculture from state and local emergency reporting requirements under the Emergency Preparedness and Community Right-To-Know Act (EPCRA).  EPA has requested interagency clearance for a rulemaking implementing the FARM Act’s provisions as it relates to CERCLA and EPCRA reporting.  We expect a proposed rule to be published in October to reflect the FARM Act’s effect on EPCRA reporting, and UEP will be submitting comments on that rule.  A final rule is expected in 2019.

EEMs and NAEMS and Clean Air Act Regulatory Measures Applicable to Egg Producers  

EPA is now actively working to complete air emissions estimation methodologies (EEMs) for egg, broiler, swine and dairy operations.  These EEMs will be intended for use by animal operations as they determine whether, or if, they must take any actions to comply with applicable federal air quality requirements.  With the passage of the FARM Act, there now will be no need to use the EEMs to guide emissions reporting under CERCLA or EPCRA, but there may be some limited instances where these EEMs could affect egg producers under the Clean Air Act (CAA) permitting programs.

UEP is working with EPA to develop a briefing for egg producers and others in animal agriculture to gain a greater understanding of how the CAA might come into play, if at all, once the EEMs are done.  UEP will schedule and conduct a recorded webinar for egg producers about the CAA and how it might apply to them.  Watch for this announcement later this year or early in 2019.

As of today, EPA plans to issue draft EEMs for layer operations in February of 2020.   UEP is actively working with EPA between now and the issuance of these draft EEMs.

Definition of “Facility” Under the Clean Air Act

EPA has requested public comment on a draft memo which would reduce the likelihood that non-contiguous, geographically separated facilities that have some production relationship would be lumped together to determine whether CAA permitting applies.  The new memo would clarify the term “adjacent” to reflect the common-sense notion of a facility encompassing the operations at a single, contiguous location; whether the two “nearby” facilities have a functional interrelatedness would not be a relevant consideration.  The draft memo can be found here.

The value of such a policy lies in making it less likely that air regulators would connect two discontinuous farms under a single, more complicated air permit.  For example, without this policy, it is possible that a producer with a pullet operation a few miles away from a layer operation would find the state permitting agency trying to join the two operations for permit consideration purposes.  This would mean combining the two locations’ air emissions into one lump sum, which could mean both facilities are made subject to CAA permitting, when (if dealt with separately) neither might have emissions that trigger permitting.  UEP is working with other members of the Barnyard in DC to determine how to best prepare and submit comments on this important, proposed memo.

WOTUS Rule

There is a fair amount of complicated discussion going on with the 2015 WOTUS rule, and the EPA’s efforts to craft and promulgate a replacement for the 2015 rule.  We expect the latter to be proposed later this year and for it to be finalized late in 2019 (and then immediately subject to litigation).  In the meantime, because of a complicated and tortured set of federal court decisions, the 2015 rule is currently in effect in 22 states and subject to a preliminary injunction in the other 28 states.  Litigation is expected to continue to seek a nationwide stay of the 2015 rule, and many presume it will be secured.  But it is not certain.

Unfortunately, there are several major egg-producing states where the 2015 WOTUS rule is now in effect (see the map generated by EPA below).  Please advise UEP if you find yourself subject to a potential WOTUS jurisdictional determination under the 2015 rule.