WASHINGTON, April 11, 2017 – A court ruling significantly expands the number of animal feeding operations that will have to report air emissions from animal waste.
On Tuesday, the D.C. Circuit Court of Appeals found illegal a 2008 rule that exempted all but the largest concentrated animal feeding operations (CAFOs) from reporting releases of hazardous substances, including ammonia and hydrogen sulfide, above certain levels.
The rule contained a blanket exemption from the air reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which requires reporting to federal authorities, and exempted all but the largest CAFOs from requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA), which requires reporting to state and local authorities.
Environmental groups, including Waterkeeper Alliance, Center for Food Safety (CFS), Sierra Club and the Environmental Integrity Project, sued.
EPA does not have “carte blanche to ignore the statute whenever it decides the reporting requirements aren’t worth the trouble,” Circuit Judge Stephen Williams said, writing for the three-judge panel.
The court said comments on EPA’s exemption proposal undermined the EPA’s rationale for not requiring notifications of animal-waste-related releases. The agency had said the reports did not serve a regulatory purpose because any federal response to notifications would be “impractical and unlikely.”
“It’s not at all clear why it would be impractical for the EPA to investigate or issue abatement orders . . . in cases where pumping techniques or other actions lead to toxic levels of hazardous substances such as hydrogen sulfide,” the court said.
The opinion cited one comment stating that when manure pits are agitated for pumping, hydrogen sulfide, methane, and ammonia “are rapidly released from the manure and may reach toxic levels or displace oxygen, increasing the risk to humans and livestock.”
“That risk isn’t just theoretical; people have become seriously ill and even died as a result of pit agitation,” the court’s opinion said.
Although she could not estimate the number of facilities that might be affected, CFS staff attorney Cristina Stella said that the ruling nonetheless “will have a significant effect because of the amount of waste the industry deals with.”
The National Pork Producers Council, one of the farm groups that challenged the rule, had argued there should be no requirements at all. But the court said its decision to vacate the final rule mooted NPPC’s challenge. Following the decision, NPPC said it was “reviewing the decision and will be considering our options.”
