The Environmental Protection Agency has another two months to complete emissions guidance for animal feeding operations (AFOs), courtesy of an order today from the D.C. Circuit Court of Appeals. EPA now has until Jan. 22 to finalize its guidance for AFOs.

EPA, supported by the National Pork Producers Council and U.S. Poultry & Egg Association, had asked for more time, while Waterkeeper Alliance, Environmental Integrity Project, Center for Food Safety and other groups opposed the request. The appeals court order was brief and did not offer any reasoning for its decision.

In preliminary guidance issued Oct. 25, EPA said that farms that use manure as part of their "routine agricultural operations" would not have to report emissions generated by that waste – such as ammonia and hydrogen sulfide – to state and local authorities under the Emergency Planning and Community Right-to-Know Act (EPCRA). "EPA believes Congress did not intend to impose EPCRA reporting requirements on farms engaged in routine agricultural operations," the agency said at the time.

A few days later, however, EPA told the court it needed at least a couple of months to work out any kinks in the guidance and begin a rulemaking on interpreting the phrase "used in routine agricultural operations” as it pertains to EPCRA reporting requirements. Animal operations will still have to report estimated emissions annually under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), a requirement that was scheduled to become effective Nov. 15.

NPPC and USPOULTRY, however, said EPA changed the reporting system at the last minute, advising operators in "updated interim guidance" on Nov. 13 that they could email their information instead of placing phone calls to the National Response Center, which is run by the Coast Guard.

"NPPC and USPOULTRY have spent months trying to inform their members how to report using telephone calls (as required by the Code of Federal Regulations), but now it is too late to inform their members about how to use a different system by tomorrow," a lawyer representing them said in a letter to the court on Nov. 14.

The environmental groups, however, argued that EPA "is not seeking time to help (animal feeding operations) 'come into compliance,' but rather time to promulgate an illegal rule so that they never have to comply. EPA’s 'preliminary interpretation' would thus violate the Court’s mandate by directing AFOs that they need not comply with EPCRA."

The National Cattlemen's Beef Association welcomed today's development. "Cattle producers have one more thing for which to be thankful this Thanksgiving weekend," NCBA President Craig Uden said. "Agricultural operations were never intended to be regulated by these laws, so this court-ordered stay until January 22 is very welcome news. We’ll use this additional time to continue working on the introduction of stand-alone legislation to fix this issue, and we’ll also promote corrective language in the appropriations process.”


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