Exemption for Reporting of Air Emissions from Animal Wastes at Farms Struck Down
On April 11, 2017, the D.C. Circuit Court of Appeals (the “Court”), in its Waterkeeper Alliance v. Environmental Protection Agency
decision, struck down the United States Environmental Protection Agency’s (“EPA”) rule that generally exempted farms from reporting requirements for air emissions under the Comprehensive Environmental Response, Liability and Compensation Act (“CERCLA”) and the Emergency Planning and Community Right-to-Know Act (“EPCRA”). CERCLA generally requires the reporting of releases of hazardous substances in excess of a 24-hour reportable quantity to the federal National Response Center, and EPCRA requires similar reporting to state and local emergency planning committees. The 2008 EPA rule (the “Rule”) had set out certain exemptions for reporting of air releases of hazardous substances from emissions from animal wastes at all farms under CERCLA and all but the largest confined animal feeding operations (“CAFOs”) under EPCRA. For instance, ammonia and hydrogen sulfide are the most common hazardous substances emitted from animal wastes and both have reporting thresholds (100 pounds in 24 hours) that many farms could exceed.
The Court found that the EPA did not have the authority under the statutes to grant reporting exemptions, based on cost considerations or otherwise, but instead the statutes required reporting of “any
release . . . of a hazardous substance . . . in quantities equal to or greater than the reportable quantities” and set out specific exemptions to potential reporting requirements. The Court also rejected claims that there was no benefit to requiring reporting as to animal-waste emissions, pointing out examples where people have been injured by animal waste air releases and measures farms can take to reduce injuries. The Court's decision appears to leave the EPA little room to re-adopt the exemptions on different reasoning, and congressional action to adopt farm exemptions directly into the statutes is difficult to predict given the crowded legislative agenda.
As the Court struck down the EPA’s Rule, limiting the reporting of air emissions from animal-wastes, the key issue going forward is determining if particular operations will reach reportable quantities for substances and how the reporting of such wastes will need to be handled. It is not currently known what the actual impact of the Court’s ruling will be as to the variety of farming operations that may be impacted. However, the EPA has estimated that the decision will affect approximately 15,500 CAFOs operating in the United States. A CAFO is a farm that confines more than a certain number of animals—for example, more than 1,000 cattle; 2,500 hogs; 10,000 sheep; 55,000 turkeys; or 125,000 chickens.
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This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.