Emission Reporting Rule Reversed

OMAHA (DTN) -- A 2008 U.S. Environmental Protection Agency rule that exempted large animal feeding operations from reporting air pollutants generated by animal waste was struck down by a federal court in Washington, D.C., Tuesday.

Back in 2008, the George W. Bush administration exempted animal feeding operations from having to report ammonia and hydrogen sulfide emissions in particular. The action prompted a number of environmental groups to sue the EPA.

Prior to the Bush administration's rule, federal law required concentrated animal feeding operations and other industrial facilities to notify government officials when pollution levels exceeded public safety thresholds. As of Wednesday afternoon, the EPA had not responded to DTN's request for clarification about what the court action means for CAFOs.

In its ruling Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit said EPA's claim that it has never acted on air pollution complaints regarding feedlots doesn't hold water.

"It thus poses the question whether the record adequately supports the EPA's conclusion that these animal-waste reports are truly 'unnecessary,'" the court said in its opinion.

"By contrast, the environmental petitioners' argument, when framed in the language of Alabama Power, is essentially that the reports 'provide benefits, in the sense of furthering the regulatory objectives.' In light of the record, we find that those reports aren't nearly as useless as the EPA makes them out to be."

A number of environmental groups led by Waterkeeper Alliance challenged the agency's decision, claiming animal feeding operations should be required to report emissions through two laws. Those laws are the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or CERCLA, and the Emergency Planning and Community Right to Know Act of 1986, or EPCRA.

The two laws require parties to notify authorities when large quantities of hazardous materials are released into the environment.

The EPA issued a final rule in 2008 that generally exempts farms from the reporting requirements for air releases from animal waste. The agency did so because it said a federal response to such releases would be "impractical and unlikely."

At the time, the agency estimated the rule would save farms more than a million hours, more than $60 million in compliance costs and eliminate about 160,000 hours and $8 million in government costs over 10 years.

The court said many commenters during a public comment period for the exemption said they wanted to receive information about such releases from concentrated animal feeding operations.

"The final rule, by cutting back on CERCLA reporting requirements, had the automatic effect of cutting back on EPCRA reporting and disclosure requirements," the court ruled. "It thus deprives Waterkeeper of information, the public disclosure of which would otherwise be required by EPCRA."

Earthjustice attorney Jonathan Smith said in a statement on Wednesday that emissions from animal feeding operations are causing problems.

"In the words of the court, the risk of air emissions from CAFOs isn't just theoretical," he said. "People have become seriously ill and even died from these emissions. But the public cannot protect itself from these hazardous substances if CAFOs aren't required to report their releases to the public. The loophole also prevented reporting of these toxics to local and state responders and the court held that plainly violated the law."

Also on Tuesday, the EPA started the ball rolling on overall regulatory reform in the agency.

EPA posted to regulations.gov, http://bit.ly/…, a notice asking for public comment on its evaluation of existing regulations.

On March 24, 2017, EPA Administrator Scott Pruitt issued an agency-wide memorandum on the implementation of President Donald Trump's executive order requiring a regulatory reform task force and federal government program offices to seek public input on existing regulations. The federal agencies are required to report back to the task force by May 15.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(SK/AG)

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