This is not a substitute for legal advice.
The smells of livestock are common if you live on a farm or next to a farm. If livestock numbers reach certain sizes, then 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 releases have been focused on ammonia and hydrogen sulfide as manure is broken down. In 2008, the Environmental Protection Agency (EPA) developed an exemption from the reporting requirements for all animal feeding operations from CERCLA and EPCRA but required larger animal operations to continue reporting under EPCRA. Environmental and animal welfare groups challenged this exemption. The Court of Appeals for the D.C. Circuit recently struck down the exemption.
Before we focus on the decision, lets discussion what CERCLA and EPCRA require regarding reporting. 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 happen, CERCLA requires notification to EPA’s National Response Center over a threshold set by EPA. EPCRA is similar to CERCLA and requires reporting of releases of a hazardous substance. In the case of EPCRA, parties would notify state and local authorities of releases of hazardous substances. The goal is to allow federal, state, and local authorities the ability to respond to hazardous substances.
In 2008, EPA announced a final rule that would have exempted farms from CERCLA and EPCRA reporting requirements that might trigger from animal waste. EPA did not exempt concentrated animal feeding operations (CAFOs) from the reporting requirements for the releases of ammonia and hydrogen sulfide under EPCRA. In creating the exemption, EPA pointed out that there were no foreseen situations where EPA would take action due to the notification. To EPA, releases from ammonia and hydrogen sulfide (due to the breakdown of manure) were on-going to make an emergency response unlikely or unnecessary.
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 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 reporting all non-exempt releases. Nothing in the statutes gave EPA the authority to create exemptions other than the ones spelled out in CERCLA and EPCRA.
Courts have allowed agencies to utilize the de minimis doctrine, a doctrine that allows agencies to avoid an absurd result due to the 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 on language there could be situations where responses would be necessary, as the court points out. Commenters on the final rule pointed out situations when EPA would need to take action.
The reported information is useful to local agencies. Several comments on the rule pointed out how local officials use these reports to respond to complaints from the public. 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. 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 final rule and EPA’s justification for the final rule. To the court, there is a benefit to requiring reporting than the estimated costs. The three-judge panel agreed with Waterkeepers and vacated the final rule exempting animal feeding operations.
Why should you care? This ruling will have large implications for animal feeding operations 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. 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 though when the releases are “continuous and stable in quantity and rate.” (§ 9603(f)(2)). If the releases statistically increase in quantity, then the operation would need to report the increases to the National Response Center.
Although the court makes this out to be an easy proposition, this will require animal feeding operations to monitor and understanding how changes can impact emission releases actively. Tools are needed to assist producers in understanding how air emissions from a lagoon, litter storage area, barn, etc. can change over time.
There is still a lot to be worked out after this ruling. EPA still has appeals options available and may utilize those options. 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).