By Steven L. Hoch, Esq., Partner at Morris Polich & Purdy LLP

The U.S. Court of Appeals for the District of Columbia Circuit recently vacated a 2008 Environmental Protection Agency (EPA) rule that exempted farms from Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements for air releases from animal waste (Waterkeeper Alliance v. Environmental Protection Agency 853 F. 3d 527 (2017)).

In December 2007, the EPA proposed exempting farms from CERCLA and EPCRA reporting of air releases from animal waste, which produces and emits various gases into the atmosphere including hydrogen sulfide, methane and ammonia. It can also be a source of particulate matter. The impetus for proposal was that the EPA could not “foresee a situation where the [it] would take any future response action as a result of such notification of releases of hazardous substances from animal waste at farms 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.” Public comments on the proposal sought information about emissions from the largest farms—Concentrated Animal Feeding Operations (CAFO), which confine a relatively large number of animals, usually exceeding 1,000. The final rule requires CAFOs to continue reporting air emissions under EPCRA, but not under CERCLA.

The Court of Appeals states that it reviewed the final rule for reasonableness under the standard of Chevron USA, Inc. v. Natural Resources Defense Council, Inc., which holds that within its domain, a reasonable agency interpretation prevails and if Congress has directly spoken to an issue then an agency interpretation contradicting what Congress has said would be unreasonable. The court concluded that the concerns for efficiency and minimizing the burdens on government agencies do not give the EPA carte blanche to ignore the statute whenever it decides the reporting requirements are not worth the trouble.

Furthermore, the court agreed that the final rule prevents local, state, and federal emergency responders from having critical information about potentially dangerous releases and limits the ability of federal or state authorities to take action through investigations, clean-up, or issuing abatement orders. In conclusion, the court stated that the EPA’s action cannot be justified as a reasonable interpretation of any statutory ambiguity or implementation of a de minimis exception, and the court vacated the final rule.

So the real question is what’s all the fuss?

Each of the animals in a CAFO eats, digests and expels feces and urine. What we need to understand is that while many of us know what it means to pick up after our dog, clean our cat’s litter box or our falcon’s cage, there aren’t many of us that have tried to clean up after a 1,500-pound cow. Multiply by 2,000 cows and a herd can generate approximately 240,000 pounds of manure daily, or nearly 90 million pounds per year. Of course, each type of animal is different and has a unique place as part of the problem.

The potential for emissions exists wherever manure is present, including from confinement buildings, open lots, stockpiles, anaerobic lagoons, and land application from both wet and dry manure management systems. The key in dealing with this waste is appropriate manure management, which can vary in type, size, and complexity. Manure can be handled as a solid, with storage in a confinement facility or in stockpiles that may or may not be covered. For liquid or slurry manure handling systems, manure may be stored in an integral tank, such as a storage tank under the floor of a confinement building. There is also land application, which is spreading the manure on crop land, as it is an organic matter that assists in the growth of various crops. However, the method of applying manure can affect the quantity of emissions.

There is really no good answer that will eliminate all off-gassing, and we certainly have to accept the fact that there are going to be gaseous emissions from animals. Dealing with this is not an easy issue. It would appear that EPA’s final rule really sought to eliminate a burden on the farming community. However, now that it seems monitoring is going to be required, the information will be used by various groups and governments agencies to either sue or require further action on the problem. That is not necessarily a bad thing, but there is a distinct possibly that this could have a significant impact on farming and may drive farmers out of business. If not driven out of business, farmers, who already work at small margins, may be forced to raise food prices in order to be profitable.