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Tracking EPA’s enforcement of the CAFO Mandatory Greenhouse Gas Reporting Rule

published in McAfee & Taft AgLINC | December 1, 2010

As we know, the U.S. Environmental Protection Agency has been working on adopting regulations requiring larger animal feeding operations to calculate and report emissions of greenhouse gases, including carbon dioxide, methane and nitrous oxide. The EPA adopted these rules on October 30, 2009, and they were effective as a matter of law on December, 29, 2009. Generally, facilities and other entities targeted by the rules had to begin various stages of implementation on January 1, 2010. For animal feeding operations, however, Congress stepped in. On October 29, 2009, Congress added language, initially to the EPA’s 2009-2010 budget, and recently to EPA’s 2010-2011 budget, that prevented the EPA from using any of its budget for the enforcement of the greenhouse gas reporting rule on animal feeding operations. As a result, the EPA guidance regarding these rules specific to animal feeding operations (40 C.F.R. § 98.360, Subpart JJ) now includes the following note: “EPA will not be implementing subpart JJ of Part 98 using funds provided in its FY2010 appropriations or Continuing Appropriations Act, 2011 (Public Law 111-242), due to a Congressional restriction prohibiting the expenditure of funds for this purpose,” available at: http://www.epa.gov/climatechange/emissions/subpart.html.

Animal feeding operations were not required to calculate and report greenhouse gas emissions for the EPA’s fiscal year beginning October 1, 2009 or October 1, 2010. If, however, any animal feeding operation facilities are covered by any other subparts of the final rule – for example, Subpart C relating to the burning of fossil fuel – these facilities should be finalizing their first year of record keeping in time to report their emissions in March 2011. Also, Congress’ extended limitation on EPA’s use of budgeted resources for enforcing the greenhouse gas reporting requirements for animal feeding operating only lasts through September 2011. Be watching for further congressional action on this issue in October 2011.