Amidst a great deal of controversy, President Trump signed the “Consolidated Appropriations Act, 2018” on March 23. The omnibus $1.3 trillion spending package includes a number of provisions that affect agriculture, not all spending related. One glaring omission from the bill that agriculture wanted, however, was language allowing the EPA to withdraw the Waters of the United States (WOTUS) rule. Otherwise, the new law contains fixes and clarifications for several key legal issues agriculture has faced in the past year and funding for important agricultural programs.
Section 199A tax deduction revised
Sellers of grain who were hoping to capitalize on the IRC § 199A 20% gross sales deduction when selling grain to their cooperative will be disappointed that the spending bill has removed the deduction and that the removal is retroactive to January 1, 2018. Congress enacted new provisions that will address sales to cooperatives. According to my colleague and tax expert Kristine Tidgren at Iowa State, “the cooperative patron is subject to a new bifurcated calculation and a hybrid 199A deduction. Essentially, the fix gives the cooperative patron a deduction that blends the new 199A deduction with the old 199 DPAD deduction (all within the new 199A). Depending upon their individual situations, cooperative patrons may be advantaged, disadvantaged, or essentially treated the same by selling to a cooperative rather than selling to a non-cooperative.” Read more of Kristine’s analysis here.
CERCLA emissions reporting for livestock goes away
The spending bill incorporates provisions of the “Fair Agricultural Reporting Methods Act” proposed earlier by a bi-partisan group of Senators concerned about a court ruling that subjected farms to air emissions reporting under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (explained in our previous post). The EPA had delayed the reporting requirement to May 1, 2018. The reporting mandate is removed under the new law, however, which states that air emissions from animal waste at a farm are not subject to CERCLA reporting requirements, nor are emissions from the application, handling or storage of registered pesticides. A “farm” is an area used to produce crops or livestock that have a total value of $1,000 or more.
Electronic logging device rule further delayed
We’ve reported several times on the Electronic Logging Device (ELD) rule that would require commercial agricultural haulers to utilize electronic technology that automatically records hours-of-service data. The Federal Motor Carrier Safety Administration (FMCSA) issued several waivers that delayed the requirement. The new spending bill effectively voids the ELD rule until September 30, 2018, by prohibiting the FMCSA from using its funds during that time to implement, administer, or enforce provisions regarding the use of electronic logging devices by operators of commercial motor vehicles transporting livestock or insects.
County-level ACRE pilot program to be established
The spending bill directs USDA to create a 2018 pilot program for county-level agriculture risk coverage (ARC) payments for the 2017 crop year. Farm Service Agency offices in each State will have the opportunity to provide agricultural producers a supplemental payment to ensure that there are not significant yield calculation disparities between comparable counties in the State.
Rural broadband grant program funded
The law allocates $600,000,000 for the USDA to conduct a new broadband loan and grant pilot program under the Rural Electrification Act. At least 90 percent of the households to be served by the project receiving a loan or grant under the pilot program must be in a rural area currently without sufficient access to broadband.
Conservation funding maintained
The spending bill maintains full funding levels for farm bill conservation programs and exempts farms participating in conservation programs from obtaining System for Award Management (SAM) and Data Universal Numbering System (DUNS) numbers. The Great Lakes Restoration Initiative received $300 million to carry out activities that would support the Initiative and the Great Lakes Water Quality Agreement, including grants for research, monitoring, outreach, and implementation.
Research funding increased
In stark contrast to significant cuts proposed by the White House, the spending bill contains the largest increase in research funding in over a decade. Research programs at the USDA would grow by $33 million, to $1.2 billion. The funding includes a $25 million increase to a $400 million budget for the Agriculture and Food Research Initiative (AFRI) established by the 2008 Farm Bill, surprisingly still $300 million shy of the 2008 Farm Bill’s proposed funding level.
Readers can dig into the 878 pages of the Consolidated Appropriations Act of 2018 here.
A bipartisan group of eight U.S. senators have introduced a bill to exempt agricultural producers from reporting requirements under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). We’ve reported previously on the new mandate that would require livestock operations to report air emissions, the result of a U.S. Court of Appeals decision last year that struck down the EPA’s rule that exempted agriculture from the reporting requirements. The U.S. EPA has repeatedly requested the court for a delay of the new reporting mandate, now delayed until after May 1, 2018. The proposed legislation would establish a new exemption that would protect farmers from the upcoming reporting mandate.
Senator Deb Fischer (R-Neb.), a primary sponsor of the legislation, stated that “[t]hese reporting requirements were designed to apply to industrial pollution and toxic chemicals, not animal waste on a farm or ranch.” Co-sponsor Joe Donnelly (D-Ind.) assured farmers that requiring them to “spend their time and money on reports that will go unused by EPA would be burdensome and needless.”
The text of the senators’ proposed Fair Agricultural Reporting Method (FARM) Act, S. 2421, is available here. The proposal includes:
- A statement that CERCLA reporting does not apply to air emissions from animal waste, including decomposing animal waste, at a farm.
- A definition for “animal waste,” which means feces, urine, or other excrement, digestive emission, urea, or similar substances emitted by animals (including any form of livestock, poultry or fish), and including animal waste that is mixed or commingled with bedding, compost, feed, soil, or any other material typically found with such waste.
- A definition of “farm,” which means a site or area (including associated structures) that is used for the production of a crop or the raising or selling of animals (including any form of livestock, poultry, or fish) and under normal conditions, produces during a farm year any agricultural products with a total value equal to not less than $1,000.
- A statement that maintains the current exemption from CERCLA reporting for applications, storage and handling of registered pesticide products.
Senator Fischer introduced S.2421 on February 13 and the Senate has referred the bill to the Committee on Environment and Public Works.
UPDATE 2: The federal spending bill signed into law on March 23, 2018 contained a provision stating that air emissions from animal waste at a farm are not subject to CERCLA reporting requirements, nor are emissions from the application, handling or storage of registered pesticides.
UPDATE: The court has delayed these new reporting requirements for a second time-- the new date is May 1, 2018. Farm operations of certain sizes are now required to report air emissions of certain hazardous substances that exceed a reportable quantity under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act. This new requirement affects livestock farmers with larger numbers of animals, as they may exceed the reportable quantity for ammonia emissions. We've authored a new Law Bulletin on Continuous Release Reporting of Air Emissions for Livestock Farms to help farms determine whether they must report air emissions and if so, how to complete the reporting process. The new bulletin is available here.
Read more about the new CERCLA air emissions reporting mandate in our earlier post.
Written by Peggy Hall and Ellen Essman
UPDATE 4: Congress has clarified in new legislation enacted on March 23, 2018, that emissions from animal waste on farms are not subject to CERCLA reporting.
UPDATE 3: The U.S. EPA has requested and received an additional reporting delay until May 1, 2018 or after and has advised that the agency will provide a notice of the specific date that farms should begin reporting once the court enters its final order.
UPDATE 2: The court has delayed theese new reporting requirements until January 22, 2018.
UPDATE 1: The EPA and several agricultural groups have requested the court for a delay of the November 15 reporting deadline, but the court has not yet responded to the request. Due to a high call volume, the EPA is now advising that producers should utilize the e-mail option for continuous reporting, rather than calling the NRC line. We explain the reporting requirements in this new Law Bulletin, Continuous Release Reporting of Air Emissions for Livestock Farms.
Beginning November 15, 2017, many livestock, poultry and equine farms must comply with reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 103. The law requires entities to report releases of hazardous substances above a certain threshold that occur within a 24-hour period. Farms have historically been exempt from most reporting under CERCLA, but in the spring of 2017 the U.S. Court of Appeals for the District of Columbia Circuit struck down the rule that allowed reporting exemptions for farms. As long as there is no further action by the Court to push back the effective date, farmers and operators of operations that house beef, dairy, horses, swine and poultry must begin complying with the reporting requirements on November 15, 2017.
Farmers and operators, especially of sizeable animal operations that are likely to have larger air emissions, need to understand the reporting responsibilities. The Environmental Protection Agency (EPA) has published interim guidance to assist farms with the new compliance obligations. The following summarizes the agency’s guidance.
What substances to report
The EPA specifically names ammonia and hydrogen sulfide as two hazardous substances commonly associated with animal wastes that will require emissions reporting. Each substance has a reportable quantity of 100 pounds. If a farm releases 100 pounds or more of either substance to the air within a 24-hour period, the owner or operator must notify the National Response Center. A complete list of hazardous substances and their corresponding reportable quantities is here.
Note that farmers do not have to report emissions from the application of manure, and fertilizers to crops or the handling, storage and application of pesticides registered under federal law. However, a farmer must report any spills or accidents involving these substances when they exceed the reportable quantity.
How to report
Under CERCLA, farm owners and operators have two compliance options—to report each release or to follow the continuous release reporting process:
- For an individual release that meets or exceeds the reportable quantity for the hazardous substance, an owner or operator must immediately notify the National Response Center (NRC) by phone at 1-800-424-8802.
- Continuous release reporting allows the owner or operator to file an “initial continuous release notification” to the NRC and the EPA Regional Office for releases that will be continuous and stable in quantity and rate. Essentially, this puts the authorities “continuously” on notice that there will be emissions from the operation within a certain estimated range. If the farm has a statistically significant increase such as a change in the number of animals on the farm or a significant change in the release information, the farm must notify the NRC immediately. Otherwise, the farm must file a one year anniversary report with the EPA Regional Office to verify and update the emissions information and must annually review emissions from the farm. Note that a farm must submit its initial continuous release notification starting on November 15, 2017.
No reporting required under EPCRA
The litigation that led to CERCLA reporting also challenged the farm exemption from reporting for the Emergency Planning and Community Right to Know Act (EPCRA). EPRCRA section 304 requires facilities at which a hazardous chemical is produced, used or stored to report releases of reportable quantities from the chemicals. However, EPA explains in a statement issued on October 25, 2017 that the statute excludes substances used in “routine agricultural operations” from the definition of hazardous chemicals. EPCRA doesn’t define “routine agricultural operations,” so EPA states that it interprets the term to include regular and routine operations at farms, animal feeding operations, nurseries, other horticultural operations and aquaculture and a few examples of substances used in routine operations include animal waste stored on a farm and used as fertilizer, paint used for maintaining farm equipment, fuel used to operate machine or heat buildings and chemicals used for growing and breeding fish and plans for aquaculture. As a result of this EPA interpretation, most farms and operations do not have to report emissions under EPCRA. More information on EPA’s interpretation of EPCRA reporting for farms is here.
What should owners and operators of farms with animal wastes do now?
- Review the EPA’s interim guidance on CERCLA and EPCRA Reporting Requirements, available here.
- Determine if the operation may have reportable quantities of air emissions from hazardous substances such as ammonia or hydrogen sulfide. The EPA offers resources to assist farmers in estimating emission quantities, which depend upon the type and number of animals and type of housing and manure storage facilities. These resources are available here.
- A farm that will have reportable emissions that are continuous and stable should file an initial continuous release notification by November 15, 2017. A guide from the EPA for continuous release reporting is here. Make sure to understand future responsibilities under continuous release reporting.
- If not operating under continuous release reporting, immediately notify the National Response Center at National Response Center (NRC) at 1-800-424-8802 for any release of a hazardous substance that meets or exceeds the reportable quantity for that substance in a 24-hour period, other than releases from the normal application or handling of fertilizers or pesticides.
- Learn about conservation measures that can reduce air pollution emissions from agricultural operations in this guide from the EPA.
Note that the EPA is seeking comments and suggestions on the resources the agency is providing or should provide to assist farm owners and operators with meeting the new reporting obligations. Those who wish to comment should do so by November 24, 2017 by sending an e-mail to CERCLA103.firstname.lastname@example.org.