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Why it matters
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA) require industry to report releases of hazardous substances for the protection of public health and the environment. CERCLA requires reporting to the federal Environmental Protection Agency (EPA) and EPCRA to the local authorities when such releases occur.
Notices of hazardous substance releases from livestock (hydrogen sulfide, ammonia, etc.) give federal and state agencies useful information for a variety of purposes. Agencies use the information for emergency response, to mitigate public health risks, and to assess losses in property value. Releases from industrial farms impact air and water quality and can have public health impacts. According to the EPA, ammonia from industrial farm animal waste accounts for 50-85% of ammonia emissions in the US.
History
Dec. 18, 2008 EPA exempts farmers and ranchers from reporting air releases from animal waste under CERCLA and EPCRA if the farm falls below the Concentrated Animal Feeding Operation status threshold.
Trump Era
April 2017 The D.C. Circuit, in Waterkeeper Alliance v. EPA, vacates EPA’s 2008 exemption rule on the grounds that their action could not be justified as “a reasonable interpretation of any statutory ambiguity” and noting that the reports “aren’t nearly as useless as the EPA makes them out to be.”
May 2018 Congress responds with the Fair Agricultural Reporting Method Act, which expressly exempted air emissions from animal waste at farms and ranches from hazardous substance release reporting requirements under CERCLA.
Aug. 1, 2018 EPA issues a final rule implementing the CERCLA exemption.
Oct. 30, 2018 EPA proposes to amend the emergency release notification regulations under the EPCRA. This proposal would add a reporting exemption for air emissions from animal waste at farms equivalent to that provided under CERCLA. EPA is seeking public comment on the Agency’s interpretation that these types of releases are not subject to EPCRA reporting. The EPA intends the proposed rule to provide farms with regulatory certainty and conserve emergency response resources.
Nov. 14, 2018 EPA publishes the proposed rule. Comments are due on December 14, 2018 and may be submitted here.
June 13, 2019 EPA publishes the final rule adding a reporting exemption for air emissions from animal waste at farms under the EPCRA. The rule is effective as of July 15, 2019. EPA responds to comments protesting the exemption by stating that the EPCRA is intended to create a notification requirement for accidental chemical releases, rather than to regulate emissions.
July 9, 2019 Plaintiffs amend an ongoing lawsuit challenging EPA’s exemption of CAFOs from EPCRA reporting requirements to include opposition to the new final rule. The plaintiff coalition includes Food & Water Watch, Sierra Club, Animal Legal Defense Fund and other environmental organizations. Rural Empowerment Association for Community Help v. EPA, No. 18-cv-02260 (D.D.C.).
May 15, 2020 The D.C. District Court grants in part EPA’s motion to dismiss, rejecting plaintiffs’ claims that EPA violated the APA by failing to satisfy procedural rulemaking requirements and that the arbitrary and capricious nature of the EPCRA exemption violates the APA and EPCRA. Rural Empowerment Association for Community Help v. EPA, No. 1:18-cv-02260 (D.D.C.).