Comments on US EPA’s Proposed Rulemaking Addressing the Emergency Preparedness and Community Right to Know Act and the Reporting of Air Emissions from Animal Waste at Farms

December 14, 2018

Ms. Sicy Jacob,
Office of Land and Emergency Management
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20460

Submitted via the Federal e-Rulemaking portal: http://www.regulations.gov

RE: Comments on US EPA’s Proposed Rulemaking Addressing the Emergency Preparedness and Community Right to Know Act and the Reporting of Air Emissions from Animal Waste at Farms, Docket ID No. EPA–HQ– OLEM– 2018–0318

Dear Ms. Jacob:

The National Council of Farmer Cooperatives (NCFC) is pleased to provide the following comments on the above referenced proposed rule. We applaud the U.S. Environmental Protection Agency’s (EPA or the Agency) efforts to craft this rule and look forward to working with the Agency on implementation.

American agriculture is a modern-day success story. America’s farmers produce the world’s safest, most abundant food supply for consumers at prices far lower than the global average. Farmer cooperatives – businesses owned, governed and controlled by farmers and ranchers – are an important part of the success of America’s agricultural supply chain. Since 1929, NCFC has been the voice of America’s farmer-owned cooperatives. NCFC members include regional and national co-ops, which in turn comprise over 2,000 local farmer cooperatives across the country.

NCFC upholds four core values as it works to advance the business and policy interests of America’s cooperatives and other farmer-owned enterprises. These values are (1) farmer ownership and control in the production and distribution chain, (2) continued economic viability of America’s farmers, ranchers, and the businesses they own, (3) the stewardship of the natural resources entrusted into their care, and (4) vibrant rural communities.

We have an extremely diverse membership, which we view as one of our sources of strength – our members span the country and handle, process and market almost every type of agricultural commodity; furnish farm supplies; and provide credit and related financial services, including export financing. Earnings from these activities are returned to their farmer members on a patronage basis, helping improve their income from the marketplace. Farmer cooperatives also provide over 250,000 jobs, with a total payroll in excess of $8 billion, and contribute significantly to the economic well-being of rural America.

Whether it means ensuring families have food on the table or supporting employees who serve double duty as volunteer firefighters and emergency rescue personnel in their communities, farmer cooperatives regularly and as a normal course of their operations step up when it counts. Some programs address immediate needs such as disaster relief while others occur year after year until they become a neighborhood tradition. No matter the occasion, cooperatives go far beyond their normal business activities to actively help meet the needs in their local communities. NCFC is proud of its members’ commitment to their communities and we direct you to our first Sustainability Report, issued in 2017, that highlighted several examples of our members’ dedication to one of NCFC’s core sustainability principles: community well-being. (This report is included in the materials accompanying these comments for inclusion in the public docket.) NCFC’s report discusses several examples of this commitment. Here is a small sample of what we found when we asked our members about their efforts:

• A dairy cooperative donating more than $250,000 in support of hunger relief efforts, agricultural education and programs celebrating healthy diets and lifestyles. Contributions have gone to more than 100 organizations, from the very small to the largest regional nonprofits and academic institutions. 
• A farm input supply and services company ensuring that every kindergartner in their local community’s schools had warm gloves and hats in the winter, and the creation of a co-worker crisis fund to help families with emergency needs.
• Another dairy cooperative organizing its members to donate 150 gallons of milk per day for a year, over 54,000 gallons in total, to a regional food bank to help address a city’s needs when their drinking water supply was contaminated.
• A grain marketing cooperative offers annual financial grant opportunities to local fire, EMT and rescue crews, serving more than 25 counties to ensure crews are well-equipped to serve local residents in any emergency. Their grant program also supports local 4-H and FFA programs, offering more than $40,000 across the state.
• A food (beverage) cooperative that operates a community fund to help nonprofit organizations in dozens of locations throughout the country where the cooperative’s grower-owners and employees live and work. Supported projects include one employee’s passion for supporting his city’s senior center, the local food and clothing pantry for underprivileged students, and a local facility that supports foster kids in the community.

This is only a small sample of all the ways in which our member cooperatives support and care for their communities. With our mission and four core values squarely in mind, including our commitment to vibrant communities, NCFC welcomes and appreciates this opportunity to provide you with these comments.

When Congress first passed the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Emergency Preparedness, Community Right-to-Know Act (EPCRA), it intentionally linked the two acts’ reporting provisions to make reporting to federal, state, and local emergency response authorities consistent. Earlier this year, Congress passed the Fair Agricultural Reporting Methods (FARM) Act, which amended CERCLA with respect to the reporting of air emissions from animal waste at farms. Given how CERCLA’s and EPCRA’s reporting requirements are linked in statute, the FARM Act’s CERCLA amendments have direct implications for EPCRA’s reporting requirements. NCFC believes the proposed rule is a sound and lawful application of CERCLA and EPCRA considering the FARM Act’s changes.

NCFC’s member cooperatives care deeply about the local communities in which they operate, and they support EPCRA’s goal; to ensure communities’ have the information they need to protect themselves from risks to health, safety, and welfare. Yet not every legitimate need must be addressed through federal law, and when it comes to air emissions from manure on farms there is already a wealth of authoritative information directly applicable to manure emissions at the local level and available to the public. There is no added value from requiring famers under federal law to report these emissions. This conclusion is further reinforced by the fact that state and local emergency response authorities have publicly declared that they do not need or want these EPCRA reports from farmers.

CERCLA’s and EPCRA’s Reporting Provisions Are Linked—Congress deliberately crafted and adopted CERCLA and EPCRA statutory reporting requirements to create consistency in the reporting required, whether that be to federal authorities (under CERCLA) or the state and local emergency response authorities (EPCRA). The EPCRA statutory authorities that link back to the CERCLA Section 103 requirements are found in EPCRA subsection 304(a)1-3. Releases to the air that are not subject to CERCLA Section 103 reporting requirements can still be required to report under EPCRA if the releases meet the requirements of EPCRA section 304(a)(2). The operative question under Section 304(a)(2) that would lead to an EPCRA reporting requirement is whether the release would “occur in a manner which would require notification under section 103(a).” We find the Agency’s discussion of this question in the case of emissions to the air of animal waste on a farm to be well-reasoned. CERCLA Section 103(a) can and does apply to substances like ammonia and hydrogen sulfide, but the “manner” in which they are being emitted in this instance (from animal waste on a farm) is not covered by Section 103(a) as a result of the FARM Act’s amendments, and therefore such emissions do fall under EPCRA Section 304(a)(2).

Emergency Response Officials Do Not Want or Need These EPCRA Reports—The National Association of SARA Title III Program Officials (NASTTPO) has made it clear in the public record that they view EPCRA reports from poultry and livestock producers of no value to their members, the Local Emergency Planning Committee (LEPC), or to first responders. Please see NASTTPO’s June 1, 2017, letter to the Agency on this subject, where Timothy Gablehouse, President of NASTTPO, states that “We have had experience with EPCRA emergency release reports as well as CERCLA continuous release reports from farms primarily regarding ammonia from animal manure management. These reports are of no particular value to LEPCs and first responders and they are generally ignored because they do not relate to any particular event.” NASTTPO adds that “the most important thing to LEPCs and first responders is not detailed regulatory requirements for a facility’s relationship to these groups, but rather the simple act of open dialog and coordination….NASTTPO believes that open dialog and coordination can be more effective than release reporting for farms that do not handle quantities of EPCRA EHS chemicals but are nevertheless expected to report regarding animal manure management.” (This letter is included in the materials accompanying these comments for inclusion in the public docket.)

Ample Authoritative Information About Animal Manure Emissions is Publicly Available— There is a large body of highly credible research results characterizing the emissions from farms with animals and their manure. We refer you to the comments submitted for the record by several of the animal agricultural organizations for specific references to the numerous studies published from this research. We note in particular that the Agency worked with animal agriculture on the National Air Emissions Monitoring Study (NAEMS), a more than $11 million monitoring and research effort paid for by animal producers to characterize the emissions from dairy, beef, swine and poultry operations. Numerous papers have already been published from this work and the Agency is now developing “Emissions Estimation Methodologies” from these datasets for use in the context of the Clean Air Act, where applicable. Members of communities with questions related to how emissions from animal operations can draw upon this body of knowledge to educate themselves about these emissions and decide how they want to respond to them.

Thank you for the opportunity to provide you with these comments.

Sincerely, 
Charles F. Conner
President & CEO