On April 11, 2017, the U.S. Court of Appeals for the D.C. Circuit struck down an EPA rule exempting concentrated animal feeding operations (CAFOs) from federal CERCLA reporting requirements for air emissions from animal wastes.

When animal waste decomposes, it produces gases. Coincidentally, CERCLA designates some of these gases as reportable hazards when they are released into the air at quanities of 100 pounds or more per day. There is no established method to measure these releases from a livestock operation. The CERCLA rules attempt to address this problem by allowing entities to provide an annual notice for continuous stable releases. In 2008, the EPA created a release reporting exemption for CAFOs in 2008.

The D.C. Circuit Court ruled the EPA overstepped its powers by creating the CAFO exemption. The Court also rejected the EPA’s position that CAFO release reporting is unnecessary because the EPA could not foresee a situation where it would initiate a response action as a result of a CAFO's report. Instead, the court relied on commenters opposing the rule who argued the gases in question could be released in excess of reportable quantities when manure pits are agitated. The Court noted that even if the EPA did not think it would ever initiate a response action because of the reports, such reporting was helpful to have on record and could be used by other groups.

Despite its ruling, the Court acknowledged that when the exemption was drafted, there was no resolution of the best way to measure these releases, "which after all do not come conveniently out of a smokestack.” The Court did not identify any new accepted method for measuring air emissions from CAFOs, but still struck down the exemption.

In our opinion, CERCLA was never intended to apply to air coming off livestock farms, and the requirement for these farms to report emissions estimates from normal livestock operations will not be useful or reasonable. These farms do not store harmful gases and do not have sudden releases of harmful gases for which a neighboring community would need to protective itself against, which was the intent of this law. Nonetheless, as a result of the ruling, all livestock farms large enough to emit levels of ammonia or hydrogen sulfide in excess of 100 pounds per day will be subject to the CERCLA reporting requirements. These reports will be similar to those already required for most operators under EPCRA. The CERCLA reports will go to the National Response Center, while EPCRA report go to designated state and local governmental departments. (For instance, in Indiana, the EPCRA reports go to the state Department of Homeland Security and community or county health departments).

Under CERCLA, any failure to immediately report a release in excess of a reportable quantity can result in a significant civil penalty. Many farms subject to this new reporting requirement can likely comply by issuing an annual report of continuous releases. Physical changes and controls at the farm likely are not needed at this time, but the ruling will require paperwork from many pork, poultry, beef and dairy operations. The EPA will likely issue future guidance regarding these reports. Contact your attorney if you have questions regarding whether the reporting requirement will apply to your farm.

CERCLA = Comprehensive Environmental Response, Compensation and Liability Act (sometimes referred to as the Superfund Act).

EPCRA = Emergency Planning and Community Right to Know Act.