Posted by: Steven M. Taber | January 21, 2009

EPA’s Exemption for Air Releases of Hazardous Substances from Animal Waste at Farms Gets It From Both Sides

Environmental groups and the National Pork Producers Council both filed Petitions for Review against the EPA asking the U.S. Court of Appeals for the District of Columbia Circuit to review the EPA’s December 18, 2008, rule that provides an administrative reporting exemption for air releases of hazardous substances from animal waste at farms.

The rule provides an administrative reporting exemption from particular notification requirements under CERCLA and the Emergency Planning and Community Right-to-Know Act (EPCRA).  73 Fed.Reg. 76948 (Dec. 18, 2008).  The rule provides an exemption to releases of hazardous substances to the air that meet or exceed their reportable quantity where the source of those hazardous substances is animal waste at farms.

The Environmental Groups (Waterkeeper Alliance, Sierra Club, Environmental Integrity Project, The Humane Society of the United States, Citizens for Pennsylvania’s Future and Center for Food Safety) will contend that the entire rule should be thrown outIn a press release from Earthjustice, the Environmental Group’s lawyers, they point to “an increasing body of scientific evidence [that] shows that ammonia, hydrogen sulfide and other factory farm emissions pose serious threats to human health and the environment” to justify their position that the rule should be tossed.

On the other side of the fence, the National Pork Producers’ Council (NPPC) is also upset about the rule. According to the NPPC the rule will require large livestock facilities to file reports on air emissions through EPCRA.  Facility owners meeting certain air emission estimate levels must call state and local emergency response officials and follow up by filing written notification.  According to published reports, NPPC President Bryan Black, claims that the

EPA not only failed to provide any guidance to farmers on compliance with the new regulation or develop an adequate system to handle the volume of reports that would be filed, but it actively engaged in efforts that undermined the ability of farmers to comply with this new, stringent rule.

EPA, in its Federal Register publication, claimed that the environment would be protected because no other requirements were being changed.  This, according to the EPA, is meant to be a narrow exemption meant to “reduce reporting burden, particularly considering that Federal, State or local response officials are unlikely to respond to notifications of air releases of hazardous substances from animal waste at farms.”

Since both lawsuits were filed in the U.S. Court of Appeals for the District of Columbia Circuit, and they concern the same EPA regulation, they probably will be consolidated into a single case.

As these lawsuits are Petitions for Review, it is difficult to assess what the groups’ legal position will be and how they plan on attacking the EPA rule.  The Environmental Groups may allege that the rule does not comply with CERCLA and EPCRA and therefore it is beyond the administrative power of the EPA to promulgate such a rule.  This tactic has been successful in the recent past.  See, “Sixth Circuit Overturns EPA Rule Exempting Pesticides from NPDES Permitting” (posted 01/08/2009); “Court Overturns 15-Year Old Pollution exemption for Industries” (posted 12/24/2008).

The NPPC, on the other hand, has a little bit more difficult argument to make.  They do not want to object to the exemption as a whole, just the part that excludes large livestock facilities.  Thus, they will have to concede that EPA has the power to create the exemption, while arguing that the EPA was arbitrary and capricious in not exempting large livestock facilities.  The reports in the press also seems to indicate that the NPPC would like, if it cannot get large livestock facilities included in the exemption, a phase-in period “allowing producers to comply” with the new rule.

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