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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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About this Author

Cameron F. Field, transactional practice attorney, Michael Best, law firm
Associate

Cameron brings a broad focus to his work advocating for clients in the agribusiness, food and beverage, and energy industries. He assists clients in navigating the state and federal regulatory process and evaluating strategic business decisions. Clients rely on Cameron for well-informed counsel on water and air permitting matters, as well as on hazardous waste reporting and liability questions. 

For example, Cameron advises on risk factors involved in the purchase, sale, and cleanup of contaminated properties. Relying on his...

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Leah Hurgten Ziemba, Michael Best Law Firm, Agribusiness and Energy Attorney
Partner, Industry Group Chair

Leah takes a big-picture approach in advising clients as they face challenges on environmental, food safety, and regulatory compliance issues. She draws on experience gained in cases involving the EPA, FDA, and other public agencies.

Leah’s success as a counselor, litigator and negotiator reflects her combination of subject matter expertise, industry knowledge, and creativity. Her work includes:

  • Investigating, assessing, and remediating vapor intrusion issues at sites with historic solvent contamination

  • Providing environmental liability assessments and risk management during transactional due diligence

  • Implementing the Food Safety Modernization Act and advising on food labeling matters (e.g., “natural” claims, standards of identity)

  • Navigating local, county, and state environmental regulations to permit and build or expand manufacturing facilities and commercial dairy operations

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