Senior Judge Stephen Williams, U.S. Court of Appeals for the District of Columbia, wrote on April 11, 2017, that an EPA rule governing air releases of ammonia and hydrogen sulfide from animal waste storage must be reported to state and local authorities. (This rule was finalized in December, 2008.)
The common sense rule proposed by EPA exempted certain animal farming waste storage operations from reporting the releases of ammonia and hydrogen sulfide. EPA concluded that reporting these air emissions from AFOs and CAFOs was “…impractical and unlikely [the EPA] would not respond to them since there is no reasonable approach for the response.”
Public comments did request that emissions from the largest concentrated animal feeding operations would continue reporting air emissions under Emergency and Planning Community Right-to-Know Act of 1986. EPA agreed. The final rule did not require reporting air emissions under CERCLA-Superfund Act.
Environmental groups weigh in
Environmental groups such as Waterkeeper Alliance, Sierra Club, Humane Society of the United States (HSUS), Environmental Integrity Project, and the Center for Food Safety filed a lawsuit against EPA claiming the agency could not grant reporting exemptions to AFOs and CAFOs, but instead all entities would be required to report any and all releases over a certain reportable quantity.
The environmentalists also argued EPA’s rule was arbitrary because it treated ammonia and hydrogen sulfide releases from farms differently than from leaky ammonia tanks, animal wastes at zoos or slaughterhouse.
The National Pork Producers Council argued that EPA’s rule was faulty because it was based on the public’s interest and desire for information which was not relevant to facilitating an emergency response. The court dismissed the Pork Producers’ challenge.
Common sense exemption
EPA attempted to create a common sense exemption because it believed the reporting of ammonia and hydrogen sulfide from the storage of manure was impractical and unlikely to lead to any response of any governmental agency. EPA said its exempting animal feeding operations from reporting would save operators more than a million hours and save “…more than $60 million in compliance costs and cut out roughly 160,000 hours and $8 million in government costs related to those reports.”
This reasonable action by EPA was not upheld by the U.S. Court of Appeals. Why?
The Court claims EPA appeared to be making a de minimis argument; however, it concluded EPA did not do enough to justify such an exception. Based on the Court’s opinion, it appears EPA and its Department of Justice lawyers did not know or argue to the Court sufficient facts to preserve agriculture’s exemption. EPA made it clear that it would not be taking response action from the release of ammonia and hydrogen sulfide from animal waste. As we know, the number of pounds of air pollutants from CAFOs varies from day to day as the animals grow.
In fact, EPA told the Court “…it had never taken response action based on notifications of air releases from animal waste.” In another amazing admission, EPA told the Court it could not “foresee a situation where [it] would take any future response action as a result of any such notification[s]…because in all instances the source (animal waste) and nature (to the air over a broad area) are such that on-going releases makes an emergency response unnecessary, impractical and unlikely.” (How did animal agriculture lose this case?)
According to the Court, EPA even requested comments on whether there might be any situation which might trigger an appropriate response and if so, what would a response look like or be. EPA told the Court there were no public comments which suggested a reason for reporting air releases from animal waste.
EPA said “…in most cases, a federal response is impractical and unlikely [and]…would not respond to them since there is no reasonable approach for the response.”
Notwithstanding this very practical approach from EPA, the Court said “A plaintiff suffers an ‘injury in fact’ when agency action cuts him off from information which must be publicly disclosed pursuant to a statute.” Clearly this is a case where common sense should have prevailed. It did not. More lawsuits will follow!
(This article first ran in Farm Futures on April 25, 2017)