05.16.2017 D.C. Circuit Strikes Down CERCLA Reporting Exemptions for Animal Feeding Operations Click here to read additional articles included in this newsletter.
The United States Court of Appeals for the District of Columbia Circuit has invalidated EPA’s 2008 rule exempting animal feeding operations (AFOs) from certain federal, state and local hazardous substance reporting requirements (Final Rule). The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know-Act (EPCRA) require persons to report the release of certain specified quantities of hazardous substances to the environment. Once reported, EPA has the authority to take remedial actions or order the assessment and remediation of releases under CERCLA.
AFOs can generate significant quantities of hazardous substances from the decomposition of animal waste. Specifically, when animal waste decomposes, it releases ammonia and hydrogen sulfide to the air. Ammonia and hydrogen sulfide are classified as “hazardous substances” under CERCLA and “extremely hazardous substances” under EPCRA. As a result, AFOs were previously required to report land, water and air releases of ammonia and hydrogen sulfide if those releases exceeded reportable quantities. The reportable quantity for each of those substances is 100 pounds per day.
With the issuance of the Final Rule, EPA made significant changes to AFO reporting requirements. Specifically:
- All AFOs are exempt from the hazardous substance air emissions reporting requirements in CERCLA; and
- All but very large concentrated AFOs, known as CAFOs, are exempt from state and local hazardous substances air emissions reporting requirements in EPCRA.
EPA’s explanation for the changes is stated in its preamble to the Final Rule. There EPA concluded that a federal response to air emissions from animal waste is “impractical and unlikely.” EPA said there is no real gain by reporting if no response will occur. The D.C. Circuit did not agree.
The ruling was the result of competing suits brought by environmental groups and two livestock trade associations. The environmental groups argued CERCLA and EPCRA do not allow EPA to exempt certain persons from complying with the reporting requirements. The livestock trade associations argued CAFOs should also be exempt since the only reason EPA kept them subject to the EPCRA reporting requirements was because of the public’s desire for information, not to aid in an emergency response.
In its opinion, the D.C. Circuit recognized that AFOs and CAFOs have a difficult job in measuring releases of ammonia and hydrogen sulfide from animal waste. It noted that hazardous substances from animal waste “…after all do not come conveniently out of a smokestack”. However, the court found this fact irrelevant, holding that EPA lacks authority to provide an exemption where it is not specifically allowed in CERCLA or EPCRA. The Court found that because CERCLA has specific reporting exemptions – i.e. engine exhaust, certain nuclear material, fertilizer application, solely workplace exposures, continuous releases - only those listed in the statute can be exempt. Finally, the court found EPA’s action unreasonable in light of EPA’s failure to prove there was no scenario where reporting would benefit the public.
The opinion includes numerous puns – such as “hold your horses, responds the EPA” and “the Final Rule ran afoul of the underlying statutes” – but it’s no joke to those who operate AFOs. The impact of the opinion on them is extensive time and costs for reporting, estimated by EPA to be a million hours annually and more than $60 million annually in compliance costs. The court admits “it’s possible that [the potential real benefits] are outweighed by the costs, which EPA estimates to be substantial,” but it found any cost-benefit analysis could not overcome EPA’s lack of authority and unreasonableness in issuing the Final Rule.
Waterkeep Alliance v. EPA, No. 09-1017 (D.C. Cir. Apr. 11, 2017); 73 Fed. Reg. 76948 (Dec. 18, 2008)