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April 12, 2017Client Alert

Court Vacates Federal Air Emission Reporting Exemption for Animal Waste

On April 11, 2017, the U.S. Court of Appeals for the District of Columbia Circuit vacated a 2008 federal rule that generally exempted livestock facilities from administrative reporting requirements for the release of hazardous substances to the air from animal waste (Waterkeeper Alliance, et al. v. EPA, No. 09-1017, April 11, 2017).

The court’s decision creates regulatory uncertainty for many large livestock operations across the country that may now be subject to annual reporting requirements for the release of hazardous substances from animal waste to the air under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) and the Emergency and Community Right-to-Know Act of 1986 (EPCRA). The decision may impact also state-based reporting exemptions to the extent they incorporate or are tied to the federal reporting requirements.

CERCLA and EPCRA both require that authorities be notified when certain amounts of defined hazardous substances, such as ammonia and hydrogen sulfide, are released from a facility. Once notified, EPA has broad authority to investigate and remediate the release. The 2008 rule provided an exemption from CERCLA reporting requirements for releases to the air from animal waste for all livestock facilities and exempted all livestock operations, except for CAFOs, from EPCRA reporting requirements for releases to the air. See CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste at Farms, 73 Fed. Reg. 76,948, 76,956/1 (Dec. 18, 2008).

Environmental groups challenged the 2008 rule, claiming it went beyond EPA’s authority by creating exemptions to the statutory reporting requirements under CERCLA and EPCRA. EPA’s proposed rule took the position that such reports are unnecessary from livestock facilities, given that the agency could not foresee a situation where it would take a future response action as a result of such notification because “the source (animal waste) and nature (to the air over a broad area) are such that on-going releases makes an emergency response unnecessary, impractical and unlikely” (EPA further noted that it had never taken response action based on notifications of air releases from animal waste). The court was not persuaded that such reporting requirements were as “useless” as EPA made them out to be and similarly not persuaded that a response action would be “impractical” in a situation where a livestock facility released hazardous substances to the air that could cause human harm, such as a release to the air of hydrogen sulfide, methane, and ammonia from manure pit agitation.

This decision is not likely to be the last word on reporting exemptions for releases from animal waste. The court noted that its decision does not address whether an exemption from reporting would be lawful if the costs of such regulation outweigh the benefits, providing an opening for future regulatory action from EPA on this topic. Moreover, the decision may also be appealed to the U.S. Supreme Court.

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