Saturday 16 February 2019

EPA Guidance Falls Short of Protecting Communities

Air Releases of Hazardous Substances from Animal Waste Will Continue

Sometimes our job as Waterkeepers can get very wonky. And this is one of those times. Not only do we comment on and challenge flawed regulations, we also slog through the guidance documents that the U.S. Environmental Protection Agency (EPA) drafts about how these regulations should be interpreted and applied. Last month, the EPA released a Guidance regarding a new requirement that Concentrated Animal Feeding Operations (CAFO) – known as factory farms -- report the release of hazardous substances from their facilities.

This Guidance came a few months after the D.C. Circuit Court of Appeals ruled that CAFOs are not exempt from the reporting requirements under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Emergency Planning and Community Right to Know Act (EPCRA). The decision was meant to close a EPA loophole that has long exempted CAFOs from reporting the same hazardous substances – like ammonia and hydrogen sulfide – as other industries.

The Court reasoned that public health professionals and emergency responders would need this information to adequately respond to emergencies and community threats. Under the ruling, a CAFO owner or operator must notify federal authorities under CERCLA and state and local authorities under EPCRA after it releases a large amount of ammonia or hydrogen sulfide.

The EPA estimates that nearly three-quarters of the country’s ammonia emissions come from CAFOs. According to the Government Accountability Office, the amount of manure from CAFOs ranges from 2,800 tons to 1.6 million tons a year. The manure ends up emitting high quantities of ammonia, hydrogen sulfide, volatile methane and particulate matter after it’s stored or applied to cropland, where it either decomposes or undergoes nitrification and de-nitrification. The ventilation systems in CAFOs also release harmful levels of ammonia emissions. For instance, a study conducted by Iowa State University found that two chicken houses in Kentucky emitted over 10 tons of ammonia in one year.

Ammonia air pollution is associated with some serious health effects, including throat irritation; chemical burns to the respiratory tract, skin and eyes; chronic lung disease; and increased mortality rates.

Despite this, EPA’s Guidance exempts more than ninety percent of the largest CAFOs across the United States from reporting. The EPA justified exempting these CAFOs because they are under a 2005 Animal Feeding Operation Air Compliance Agreement. These compliance agreements were set up so the EPA could develop a reliable way to estimate emissions from CAFOs and determine whether they comply with Clean Air Act standards, but a recent report from the EPA’s Office of the Inspector found that the agency has not been able to make much progress – even after 11 years.

Another glaring issue with EPA’s Guidance is that all farms are virtually excluded from reporting hazardous emissions to state and local authorities. Under the Guidance, any farm that uses manure as part of its “routine agricultural operations” is exempted from the reporting requirements under EPCRA §304. EPA stated that it “believes Congress did not intend to impose EPCRA reporting requirements on farms engaged in routine agricultural operations.”

The “continuous release” reporting required under CERCLA §103 allows for too much uncertainty as it allows for CAFOs to report in “broad ranges” to federal authorities and only requires CAFOs to review their emissions annually.

EPA’s Guidance also falls short of informing CAFO operators and owners on how they should estimate the amount of hazardous substances emitted by their facilities. Despite acknowledging the difficulty in measuring these emissions, EPA does not require any monitoring and allows operators and owners to use their “best professional judgment.”

While this Guidance was meant to educate CAFO owners and operators on how to comply with the recent decision from the D.C. Circuit Court of Appeals, it largely circumvents the Court’s impetus for requiring CAFOs to report hazardous emissions in the first place – to protect communities and provide much needed information for local authorities and emergency responders.

The Guidance and reporting requirements will go into effect on November 15th, but the EPA has requested a stay until January 17th, which the Court has yet to rule on.

Read our detailed comments on the Guidance.

[Aerial photos of chicken CAFOs by Assateague Coastkeeper Kathy Phillips.]

 On this 45th anniversary of the Clean Water Act, we reflect on how our local Waterkeeper programs are needed more than ever to safeguard our clean water resources.

Over the past few years, Waterkeepers Chesapeake has successfully brought together 19 local Waterkeepers programs to collaboratively advocate for and bring legal action to protect communities and waterways throughout the Chesapeake Bay and Coastal Bay regions.

Waterkeepers Chesapeake has focused on unifying Waterkeeper efforts behind important clean water priorities, like the passage of the fracking ban in Maryland and the passage of protective coal ash laws in Virginia. Waterkeepers Chesapeake also works on issues at the federal level - coordinating efforts against EPA's rollback of clean water protections, the slashing of EPA funding, and Scott Pruitt's appointment.

Through the Fair Farms campaign, Waterkeepers Chesapeake is addressing agricultural pollution while supporting sustainable farming efforts. This year, we worked to pass a second-in-the-country law to restrict the routine use of human antibiotics in livestock.

At the core of our work we empower people to stop pollution and encourage better local water quality through tools and legal rights under the Clean Water Act. Waterkeeper programs were founded to engage and organize citizens to protect their right to clean water. The U.S. Environmental Protection Agency (EPA) is supposed to promulgate and enforce laws and regulations to protect human health and the environment. Sadly, under this administration, the EPA has been fully captured by the fossil fuels industry and industrial polluters. To date, the EPA has rolled back or repealed the Clean Water Rule, the Clean Power Plan, and effluent limits on the discharge of toxic coal wastewater.

Now, our Waterkeepers are the last line of defense for citizens to protect their clean water. Some examples of how our Waterkeepers are encouraging public participation in protecting our waters include:

  • For the past several years, the Potomac Riverkeeper Network (PRKN) has conducted compliance sweeps of National Pollutant Discharge Elimination System (NPDES) permits issued under the Clean Water Act to assess violations before a major incident occurs. In a recent sweep, Upper Potomac Riverkeeper found that 38 out of 291 facilities had severe violations. PRKN’s first step is to communicate pollution concerns with the facility, and to offer assistance in mitigating the problem. If there is no cooperation or development of a remedy, then they notify the State. If the State does nothing to remedy the problem, then they escalate to legal action on behalf of the impacted citizens.
  • Midshore Riverkeeper Conservancy (MRC) and Chesapeake Legal Alliance (CLA), produced the Citizen Guide – Public Participation in Maryland’s NPDES Permitting Program. The Guide was produced for the purpose of improving the vital component of citizen involvement in environmental decision-making in Maryland. The Guide is used as an outreach tool to engage organizations and citizens to get involved with the many key avenues for public participation in protecting our waters. It is critical that those impacted by permit violations be engaged in the early stages.
  • The Lower James and Upper James Riverkeepers have created an advocacy tool called Our River at Risk to educate and rally citizens around toxic pollution threats like coal ash. They use maps, online petitions and email updates to elevate the public’s voice and participation in regulatory and permitting processes.
  • The South Riverkeeper published a report on a county’s enforcement of its environmental code to show the county that it needs to step up resources for clean water enforcement. The report clearly showed that current penalties are not effective deterrents for environmental carelessness.

These are just a few examples of how our Waterkeepers bring the Clean Water Act to life on the local level and empower citizens to participate in the protection of their right to clean water. In an era when the EPA administrator only meets with corporate polluters and ignores the public, an engaged and active citizenry on the local level is more important than ever.

What You Can Do

  • Visit our website to get involved and support your local Waterkeeper program
  • Support Waterkeepers Chesapeake
  • Use our Water Reporter app to report pollution to your local Waterkeeper
  • Take Action! Tell your federal representatives to resist any rollbacks or repeals of clean water protections, to stop any reductions in funding of the EPA, and to protect citizens’ right to sue when government fails to enforce the law.



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