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Court rules CAFOs not exempt from reporting hazard releases

National Pork Board Scenic view overlooking a couple of hog barns
U.S. Court of Appeals of the District of Columbia Circuit vacated a 2008 rule that exempted livestock facilities from being required to report the release of hazardous substances from animal waste into the air.

On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit ruled to vacate a federal ruling from 2008 that generally exempted livestock facilities from being required to report the release of hazardous substances from animal waste into the air, according to the National Law Review.          

“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 and the Emergency and Community Right-to-Know Act of 1986. The decision may also impact state-based reporting exemptions to the extent they incorporate or are tied to the federal reporting requirements,” according to the National Law Review.

Under CERCLA and EPCRA, authorities are to be notified when certain amounts of defined hazardous substances, such as ammonia and hydrogen sulfide, are released from a facility. The Environmental Protection Agency has broad authority to investigate the case and decide remediation measures to be taken. Livestock facilities were granted 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 concentrated animal feeding operations from EPCRA reporting requirements for releases to the air under a 2008 rule.

Waterkeeper Alliance led a group of environmental groups challenging that 2008 rule, claiming the rule allowed the EPA to go beyond its authority by creating the reporting exemptions. The National Law Review states, “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).”

EPA had contended that such reporting requirements were “useless,” and 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, but that did not persuade the court.

The National Law Review concludes: “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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