March 27, 2008
The Honorable Stephen Johnson, Administrator
United States Environmental Protection Agency
1200 Pennsylvania Ave., NW
Washington, D.C. 20460
RE: Docket ID No. EPA-HQ-SFUND-2007-0469 – CERCLA/EPCRA ADMINISTRATIVE REPORTING EXEMPTION FOR AIR RELEASES OF HAZARDOUS SUBSTANCES FROM ANIMAL WASTES
Dear Administrator Johnson:
The Ohio Farm Bureau Federation (OFBF), the state of Ohio’s largest farm organization, appreciates the opportunity to comment on the proposed CERCLA/ERCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste as notified in the Federal Register on December 28, 2007. We firmly believe that air emissions from animal waste on farms should be exempt from reporting requirements under the Comprehensive Environmental Response and Recovery Act of 1980 (CERCLA) and its counterpart, the Emergency Planning and Community Right-to-Know Act (EPCRA), commonly known as “emergency response reporting.”
Livestock manure is a natural by-product that serves as a natural fertilizer for the crops our members produce and should not be defined as a hazardous substance or toxic waste. The Superfund laws were originally enacted by Congress to identify responsible parties, provide remediation funds and provide regulatory oversight for hazardous waste sites. To compare livestock farms to these toxic waste sites would be a grave misrepresentation. Our members constantly make environmentally sound decisions on their farms to continue maintaining an agricultural lifestyle for future generations and to continue as environmentally friendly and economically viable businesses.
The proposed exemption is vital to livestock producers to prevent further state actions and lawsuits from attempting to subject animal agriculture to CERCLA and EPCRA release and reporting provisions. Animal agriculture, the storage of manure and manure application are already highly regulated by various state and federal laws so we see no need to add additional bureaucracy to an already regulated industry.
We generally support the proposal to administratively exclude air emissions from animal waste on farms from reporting requirements under the CERCLA and EPCRA. However, we urge EPA to revise all statements suggesting that liability may exist under these laws in scenarios currently under litigation, as well as clarifying the treatment of compost under the definition of “animal waste.”
In the proposed rule’s opening summary, the United States Environmental Protection Agency (EPA) claims that the proposed rule would result in “no change to notification requirements for releases of a hazardous substance from animal waste to any other environmental media, (i.e., soil, ground water, surface water).” EPA should exert caution with such statements and be careful not to imply that releases from normal biological processes (e.g., defecation and urination) and beneficial uses of animal manure (e.g., fertilizer and bioenergy generation) are regulated under CERCLA/EPCRA as EPA has not issued any regulatory framework suggesting such a requirement. More importantly, this legal question is being actively litigated, but is yet undecided by the federal court (State of Oklahoma v. Tyson Foods Inc.). We suggest that EPA revise the affected statements by removing this clause altogether.
Because emergency response reporting from agricultural operations has not and is not likely to prompt emergency response from the either the National Response Center (NRC) located at Coast Guard Headquarters or local emergency responders, we believe that the proposed exemption is a proper use of EPA’s discretionary and administrative powers. We concur with EPA’s contention that granting this administrative exemption for air emissions from animal waste is consistent with the Agency’s goal to reduce the regulatory burden when that burden would not otherwise further the mission of protecting human health and the environment. We also agree with EPA’s assertion that emergency notification and action is not a “necessary or appropriate response to the release of hazardous substances to the air from animal wastes on farms.”
Additionally, emissions of otherwise “hazardous substances” – such as ammonia and hydrogen sulfide – into the air from animal waste are part of normal biological processes on farms and ranches. No emergency exists when excretion, digestion or decomposition of animal waste occurs, even if the level of emission exceeds the daily reportable quantity (RQ) for a particular hazardous substance that is produced by animal waste. In addition to ammonia and hydrogen sulfide emitted by animal waste, we support EPA’s proposal to include all CERCLA/EPCRA-listed hazardous substances under the exemption. Substances emitted during normal biologic processes are not an emergency threat to human health or the environment and should not require immediate government notification or response.
For the purposes of this regulatory action only, OFBF supports the definition of “farm” proposed by EPA in Parts 302.3 and 355.20 as an accurate description of a commercial agricultural enterprise. We also believe, for the purposes of this regulatory action only, that the definition of “animal waste” as proposed by EPA in Parts 302.3 and 355.20 needs clarification relating to the treatment of composted materials. EPA’s proposed definition of animal waste equates to “manure” which includes “feces, urine, other excrement and bedding that has not been composted.” Then, the definition goes on to include animal waste (i.e., manure) “when mixed or commingled with bedding, compost, feed, soil and other typical materials found with animal waste.” We agree that the latter statement should also be included in the definition with manure. However, it is not clear to us on the extent to which “composted” manure (manure is often the basis of compost) is included in the definition of animal waste. We believe that EPA should clarify that manure-based compost is included in the definition of animal waste and therefore is excluded from emission reporting.
We agree that emissions from animal waste on farms should be excluded from reporting. However, we do not see any meaningful distinction between animal waste produced on the farm and animal waste produced on non-farm facilities, like zoos, circuses, racetracks, by wildlife or on non-commercial sites. Simply put, a normal biological process is a normal biological process; for the most part, animal manure is animal manure. We believe that the Agency is heading down a slippery slope when it tries to distinguish one animal’s manure from another’s (exception being the unique concerns presented by human waste treatment and disposal). No emergency exists when excretion, digestion or decomposition of any animal’s waste occurs, even if the level of emission exceeds the daily RQ for a particular hazardous substance that is produced. Unless EPA reasonably expects emissions reporting from animal manure at non-farm sites to prompt emergency response from the either the NRC or local responders, we recommend including emissions from all animals’ manure in the proposed exemption.
Again, we appreciate the opportunity to comment on the proposed Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste. We generally support the proposed rule and highly urge EPA to positively consider making the revisions noted in our comments.
John C. Fisher