Owners or operators of certain facilities are required to notify appropriate federal, state, and local authorities of a release of hazardous substances or extremely hazardous substances when the release is in an amount equal to or greater than the designated reportable quantity for such substances under Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) and Section 304 of the Emergency Planning and Community Right-to-know Act of 1986 (EPCRA) require. Under a 2008 Final Rule, EPA provided an exemption for all animal feeding operations, regardless of size, from reporting air releases of hazardous substances from animal waste under CERCLA. (73 Fed. Reg. 76,948, Dec. 18, 2008) The 2008 Final Rule also provided the same reporting exemption under EPCRA to all animal feeding operations, except large-scale Confined Animal Feeding Operations (CAFOs). In affording these exemptions, the EPA reasoned that such reports are unnecessary given that in most cases, a federal response is impractical and unlikely for emissions from normal farm practices.
However, this relaxation of reporting requirements was vacated last week in the D.C. Court of Appeals decision in Waterkeeper v. U.S. Poultry and Egg Association (No. 09-1017, Apr. 11, 2017). Numerous environmental groups won their challenge of the EPA’s statutory authority to issue the aforementioned CERCLA and EPCRA reporting exemptions under the 2008 Final Rule. In turn, multiple farm industry groups lost their challenge of the 2008 Final Rule, arguing that in addition to small and medium-sized farms, CAFOs should likewise be able to obtain reporting exemptions under EPCRA. According to the Court, the EPA’s interpretation of its reporting exemption authority was unreasonable under the Chevron standard, finding that when read together, relevant CERCLA and EPCRA provisions establish reporting requirements for any release of a hazardous substance over designated reportable quantities. Additionally, while the EPA purported a lack of regulatory benefit in requiring animal feeding operations to engage in such reporting, the Court perceived instances where reporting would be useful in terms of initiating a response action from applicable oversight authorities. As such, the Court vacated the 2008 Final Rule based on a finding that no animal feeding operations should be exempt from reporting air releases of hazardous substances from animal waste over designated reportable quantities. To add to the difficulty of this ruling to the farm industry, assessing the amount of emissions is difficult because EPA has failed to publish an industry standard for calculation of emissions factors that has been promised for over a decade.
Impact of Ruling on CERCLA and EPCRA Reporting Requirements
The Court’s overturning of the 2008 Final Rule will likely have real, immediate consequences for small and medium-sized farms who are now required to report air releases of CERCLA hazardous substances and EPCRA extremely hazardous substances based on reportable quantity thresholds. All animal feeding operations facilities are also now required to report air releases of CERCLA hazardous substances from animal waste. This means that all animal feeding operations are now on the hook for the requirement to report air releases of CERCLA and EPCRA hazardous substances. In turn, this ruling also presents more overarching challenges to the farm industry moving forward in terms of seemingly denigrating the EPA’s authority to establish reporting exemptions concerning releases of CERCLA and EPCRA air releases of hazardous substances from continuous emissions at farms for their normal operations. Essentially the Court has provided environmental groups with more bites at the apple to file citizen suits against farms which are not in compliance with their reporting obligations.
Relief in the Form of Continuous Release Reporting
It should be noted that animal feeding operations are still able to obtain some relief from these heightened requirements under the continuous release reporting provisions, as prescribed in 42 U.S.C. § 9603(F). A continuous release is one that is stable in both quantity and rate. To fall under the continuous reporting exemption, the owner or operator of the facility at issue must have a sufficient basis for establishing the continuity, quantity, and regularity of such release. If successful in establishing a continuous release, animal feeding operations are required to report a release by making: (1) an initial telephone notification; (2) an initial written notification within thirty days of the initial telephone notification; and (3) a one-time, written follow-up notification within thirty days of the first anniversary date of the initial written notification. In addition to these standard reporting requirements, further notification is required annually for continuous releases or where there is a statistically significant increase in the quantity of the hazardous substance being released above the previously reported quantity.