The D.C. Circuit Vacated the Reporting Exemption for Farms under CERCLA and the Emergency Planning and Community Right-to-Know Act

Waterkeeper Alliance v. EPA, No. 09-1017 (D.C. Cir. April 11, 2017).

The D.C. Circuit Court of Appeals vacated the EPA’s final rule exempting farms from statutory reporting requirements for air releases from animal waste.  Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) and the Emergency Planning and Community Right-to-Know Act of 1986 (“EPCRA”), parties must notify authorities when there is a release of large quantities of hazardous materials (e.g., ammonia or hydrogen sulfide) into the environment.  In 2008 the EPA issued a final rule that exempted farms from the reporting requirements related to air releases from animal waste, reasoning the “reports are unnecessary because, in most cases, a federal response is impractical and unlikely.”  (73 Fed. Reg. 76,948, 76,956/1) (Dec. 18, 2008) (the “Final Rule”)

The EPA amended the Final Rule to retain the reporting requirements for concentrated animal feeding operations.  But a number of environmental groups, including Waterkeeper Alliance, challenged the Final Rule, alleging it exceeded the EPA’s authority.  The EPA claimed because reporting was unlikely to elicit a federal response, the final rule fell within the EPA’s authority to grant exceptions to a statute when the burdens of regulation yield little or no value (the “de minimis exception”).

The Court held real benefits might accrue from reporting animal waste emissions, for example, the EPA could investigate or issue abatement orders in cases where certain techniques lead to the release of toxic levels of hazardous substances.  Although the costs might exceed the benefits, that fact did not support application of the de minimis exception.

It is uncertain how this decision will affect enforcement of the reporting requirements under CERCLA and EPCRA.  The Circuit Court may reconsider its decision, or the EPA could appeal the decision to the U.S. Supreme Court.  The agricultural sector should remain cognizant of these developments and their effects upon the duty to report animal waste emissions.

Michael D. Sands