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The smells of livestock are common if you live on or next to a farm. If livestock numbers reach certain sizes, two federal environmental laws, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), may require the producer to report the release of hazardous substances to the National Response Center.
With animal operations, the hazardous substances releases have been focused on ammonia and hydrogen sulfide produced as manure is broken down. In 2008, the Environmental Protection Agency (EPA) developed an exemption from the reporting requirements from CERCLA and EPCRA for all animal feeding operations but required larger operations to continue reporting under EPCRA. While environmental and animal welfare groups challenged this exemption, the Court of Appeals for the D.C. Circuit recently struck the exemption down.
Before we focus on the D.C. Circuit decision, let’s discuss the CERCLA and EPCRA reporting requirements. CERCLA and EPCRA require reporting to EPA in certain situations. CERCLA gives EPA the authority to investigate and respond to releases or threatened releases of hazardous substances. To know when the releases of hazardous substances occur, CERCLA requires a producer to notify EPA’s National Response Center when these releases exceed an EPA-set threshold. EPCRA is similar to CERCLA and requires reporting of releases of hazardous substances. In the case of EPCRA, parties must notify state and local authorities of releases of hazardous substances. The goal is to allow federal, state, and local authorities to respond to a release of hazardous substances.
In 2008, EPA announced a final rule exempting farms from CERCLA and EPCRA reporting requirements which might be triggered by animal waste. EPA did not exempt concentrated animal feeding operations (CAFOs) from the reporting requirements for releases of ammonia and hydrogen sulfide under EPCRA. In creating the exemption, EPA pointed out there were no foreseen situations where EPA would take action due to a notification. To EPA, releases from ammonia and hydrogen sulfide (due to the breakdown of manure) were on-going, making an emergency response unlikely or unnecessary. Waterkeepers Alliance and other environmental and animal welfare groups challenged the exemption in federal court.
On review, the court looked to see if the exemption was a reasonable interpretation, or if Congress had directly spoken on the issue and the rule contradicted that interpretation, known as Chevron deference. The court disagreed with EPA’s arguments that both statutes gave EPA the authority to create exemptions. The court viewed the statutes as straightforward with a list of exemptions, and upheld reporting all non-exempt releases. Nothing in the statutes gave EPA the authority to create exemptions other than those spelled out in CERCLA and EPCRA.
Courts have allowed agencies to utilize the de minimis doctrine, which allows agencies to avoid an absurd result due to statutory language. Agencies cannot use the de minimis doctrine based on benefits exceeding the costs. EPA tried to justify the exemption under this doctrine by arguing that in most cases, federal responses would be unlikely. But based on EPA’s own language, there could be situations where responses would be necessary, as the court pointed out. Commenters on the final rule cited situations when EPA would need to take action.
The reported information is useful to local agencies. Several public comments on the rule pointed out how local officials use these reports to respond to public complaints. For example, if a citizen calls in the middle of the night complaining of a foul odor or chemical smell, a responder can look at the release reports to determine the facility involved. Reported releases save responders from driving around aimlessly looking for the cause of the complaint.
To the court, all these comments served to undermine the 2008 final rule and EPA’s justification for that rule. To the court, there is a benefit to requiring reporting justifying the estimated costs. The three-judge panel agreed with the plaintiff, Waterkeepers, and vacated the final rule exempting CAFOs.
Why should you care? This ruling will have major implications for CAFOs across the country, not just in Maryland. As the court and EPA have pointed out, measuring releases from an animal feeding operation is not always convenient, and currently, there is no clear resolution on how best to monitor them. The court points out that Congress did allow for annual reporting of continuous releases (42 U.S.C.A. § 9603(f)). Annual reporting is only available, however, when the releases are “continuous and stable in quantity and rate.” (§ 9603(f)(2)). If the releases statistically increase in quantity, the operation would need to report the increases to the National Response Center.
Although the court makes this out to be an easy proposition, CAFOs will need to monitor and understand how changes affect emission releases. Producers will need tools to help understand how air emissions from a lagoon, litter storage area, barn, etc. can change over time.
There is much to be worked out after this ruling. EPA still has appeals options available and may utilize them. Or EPA could request the full DC Circuit Court of Appeals review or seek review with the U.S. Supreme Court. Until the appeals process is exhausted, this issue is not final, and the rule may still have a life.
42 U.S.C.A. § 9603 (2017).
Waterkeeper Alliance v. EPA, 09-1104, 2017 WL 1323525 (D.C. Cir. April 11, 2017).