Possible new EPCRA rulemaking concerns animal agriculture

March 10, 2022

In a surprise move, without any notice or discussion with U.S. animal agriculture groups, EPA collaborated with environmental groups in 2021 to reconsider its 2019 rule that excluded air emissions from animal manure from the reporting requirements of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA).

As a result of those efforts, EPA petitioned the D.C. District Court to send the rule back to EPA for reconsideration and possible rewriting.  The court approved EPA’s petition on February 14. The EPCRA rule and its exemption of requirements to report manure’s ammonia emissions will remain in place for farms while EPA undergoes a new notice-and-comment rulemaking procedure.

It was inappropriate for EPA to initiate such discussions with environmentalists and the courts without consulting the animal agriculture groups, which were also part of the litigation, and animal agriculture has clearly communicated this to EPA.

Observers believe there are indications that EPA made this decision without adequate consultation with the appropriate career and policy officials regarding the law and regulatory history around EPCRA reporting.

Revisiting the 2019 EPCRA rule is puzzling to UEP and animal agriculture because the EPCRA reporting exemption is now effectively a statutory provision. Congress enacted legislation in 2019 to eliminate the “CERCLA” reporting requirement, which given the way CERCLA and EPCRA are statutorily linked, also removes the requirement under EPCRA.

EPA officials have made it clear that it is widely recognized in EPA that this decision should not have been made without discussion with the regulated animal sectors and that it will not happen again.  What happens next under EPA’s rulemaking remains to be seen.