WASHINGTON, Dec. 14, 2016 - An EPA rule exempting most animal feeding operations from emergency reporting requirements for ammonia and hydrogen sulfide was challenged as both too tough and not tough enough, in arguments before the D.C. Circuit Court of Appeals Monday.
An attorney for environmental groups took the latter view, saying the law governing emergency reporting does not allow EPA to exempt certain emission sources – in this case, farms, as EPA did in 2008 when it issued a rule under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA).
Waterkeeper Alliance and other environmental groups, including Sierra Club, the Humane Society of the U.S., Environmental Integrity Project and the Center for Food Safety sued EPA over that regulation, which exempts all but the largest animal feeding operations (AFO’s) from reporting ammonia and hydrogen sulfide emissions that exceed 100 pounds in 24 hours.
“The text of the statute is clear that any facility must report any release” above the threshold, said Jonathan James Smith of Earthjustice, representing the environmental groups. Smith emphasized the potential benefits to public health of required reporting, saying that having information about releases helps the public avoid the facilities emitting the chemicals, and can guide state and local agencies in crafting regulations.
Smith also took aim at the size standards EPA used in defining which facilities would have to report – including those with fewer than 700 mature dairy cows, or those with 2,500 swine weighing 55 pounds or more (or 10,000 swine weighing 55 pounds or less).
“It’s not just animal size that affects how much is emitted,” he said following the arguments, mentioning livestock size and diet as other factors.
On the other side of the issue was David Chung of Crowell & Moring, arguing for the National Pork Producers Council and the U.S. Poultry and Egg Association. He contended that EPA had no authority to require even large operations to report their releases because there is no evidence that animal waste emissions would ever trigger an emergency response. He added that “reducing emissions is not the purpose of the emergency notification provisions.”
That point also was made by EPA in the final rule, when it said it “believes that state or local emergency response authorities are unlikely to respond to notifications of air releases of hazardous substances from animal waste at farms.”
EPA, represented by the Justice Department, argued to the three-judge panel – Circuit Judges Janice Rogers Brown, Sri Srinivasan and Stephen Williams – that the environmental groups had not been able to demonstrate legal standing in the case. Even assuming they have standing, however, the two DOJ lawyers said that EPA’s rule was reasonable and avoids unnecessary burdens on federal, state and local agencies, as well as on the farms that do not have to report.
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