DC Circuit Court: Farms must report air emissions, exemption unlawful

Texas A&M- Texas Agriculture Law Blog
May 19, 2017
By Texas A&M- Texas Agriculture Law Blog
May 19, 2017, U.S. - In April, a major decision came out of the United States Court of Appeals for the District of Columbia in the Waterkeeper Alliance v. Environmental Protection Agency case.

Under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") and the Emergency Planning and Community Right-to-Know Act ("EPCRA"), both federal environmental laws passed in the 1980's, parties must notify the National Response Center (for CERCLA) or state and local government agencies (for EPCRA) when amounts of certain hazardous materials over a set quantity are released into the environment.

After this notification is made, the NRC notifies all necessary governmental authorities. The statutes give the EPA power to further investigate, monitor, and take remedial action if necessary.

An issue arose related to the application of these statutes to animal waste. At least two substances–ammonia and hydrogen sulfide–are emitted by animal waste during decomposition.

Both ammonia and hydrogen sulfide fall under the CERCLA definition of "hazardous substances" and EPCRA's definition of "extremely hazardous substances" to which the statutory reporting requirements apply. Under both statutes, the reportable quantity for ammonia and hydrogen sulfide is set at 100 pounds/day.

During rulemaking, the EPA proposed exempting farms from CERCLA and EPCRA reporting air releases from animal waste. The EPA reasoned that requiring reports for animal waste air releases was "unnecessary" because a federal response would usually be "impractical and unlikely."

They noted that, as of 2007, they had never taken a response action based on animal waste.

During public comment, the EPA expressly requested comments on whether there could be a situation where a response would be triggered due to air release from animal waste on a farm.

In 2008, the EPA finalized the rule. With regard to CERCLA, the rule exempts all farms from reporting air releases from animal waste.

Under EPCRA, while most farms are exempt from reporting, the exemption does not include confined animal feeding operations ("CAFOs").

A CAFO is defined as a farm that "stables or confines" more than a certain number of animals. For example, a CAFO contains more than 1,000 head of cattle, 10,000 head of sheep, or 55,000 turkeys. READ MORE

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