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By Perry Cooper
Large animal farms will be required to report more air pollution from animal waste after the D.C. Circuit April 11 vacated an Environmental Protection Agency rule ( Waterkeeper Alliance v. EPA , 2017 BL 117866, D.C. Cir., No. 09-1017, 4/11/17 ).
The agency’s Reporting Exemption Rule, finalized in December 2008, exempted owners of concentrated animal feeding operations from some federal air reporting requirements tied to such hazardous substances as ammonia and hydrogen sulfide.
The decision will affect the 15,500 CAFOs operating in the U.S., according to numbers from the EPA. A CAFO is a farm that confines more than a certain number of animals—for example, over 1,000 cattle, 2,500 hogs, or 125,000 chickens.
The EPA based its exemption on its view that reports of air releases from CAFOs are unnecessary because a federal response to the releases is usually impractical and unlikely.
The rule exempted CAFOs from reporting air emissions to the federal government but they were required to continue to report those releases to state and local authorities.
Environmental groups including the Waterkeeper Alliance challenged the rule as a violation of the Comprehensive Environmental Response, Compensation and Liability Act and the Emergency Planning and Community Right-to-Know Act.
Waterkeeper Alliance has targeted pork producer Murphy-Brown LLC, a subsidiary of Smithfield Foods Inc., and others in suits over farm waste.
Agricultural groups including the National Pork Producers Council favored the federal reporting exemption but challenged the part of the rule that required continued state and local reporting.
Judge Stephen Fain Williams, writing for the U.S. Court of Appeals for the D.C. Circuit, sided with the environmental groups, finding that the EPA didn’t have the statutory authority to grant the reporting exemptions under CERCLA and EPCRA.
The EPA argued its exemptions were appropriate because CERCLA and EPCRA already contained other exemptions. But that doesn’t “give the agency carte blanche to ignore the statute whenever it decides the reporting requirements aren’t worth the trouble,” the court said.
The court pointed to examples where people have been injured by animal waste air releases and measures farms can take to reduce injuries. “The record therefore suggests the potentiality of some real benefits” from reporting hazardous substance releases, the court concluded.
Judge Sri Srinivasan joined the opinion. Janice Rogers Brown concurred in the judgment but wrote separately to say the court’s analysis should have stopped when the EPA set forth no statutory ambiguity authorizing its final rule.
Earthjustice represented the environmental groups.
Crowell & Moring LLP represented the pork, egg and poultry producers.
The Justice Department represented the EPA.
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