By Brianna Schroeder, Janzen Ag Law LLC
A recent federal lawsuit is just the latest in a decade-long battle over whether livestock producers should be required to report air emissions from animal waste. A quick history lesson sets the stage for the lawsuit.
Section 103 of CERCLA, 42 U.S.C. § 9603, requires a facility to notify the National Response Center when there is a release of a “hazardous substance” (as defined by 42 U.S.C. § 9601(14)(C)) above the reportable quantity. In December 2008, the EPA released a rule that exempted livestock operations from the CERCLA reporting requirements for air emissions. All but the very biggest livestock farms were also exempted from the Emergency Planning and Community Right to Know Act (“EPCRA”) reporting requirements. But, on April 11, 2017, the DC Court of Appeals invalidated those exemptions, so livestock farms would be required to report air emissions from animal waste under federal law. The court initially set a November 15, 2017 deadline for compliance but delayed the implementation date to January 22, 2018, and then again to May 1, 2018.
In March 2018, section 103 of CERCLA was amended when the President signed into law the Consolidated Appropriations Act. Title XI is called the “Fair Agricultural Reporting Method Act” or the “FARM Act.” See Pub. L. 115-141 §§ 1101-1103 (2018). The FARM Act amended CERCLA section 103, and expressly exempts air emissions from animal waste (including decomposing animal waste) at farms from reporting. In November, the EPA issued proposed rules to exempt those same operations from air emissions reporting under the EPCRA. The public comment period on the new EPCRA rules ended December 14, 2018.
On September 28, 2018, a group of national and local advocacy groups filed suit against the EPA. A copy of the lawsuit is available here (Case No. 1:18-cv-02260-TJK in the Washington DC District Court). On November 29, 2018, the EPA asked the Court to stay the litigation for six months to allow the rule-making process to continue, or in the alternative, to set a summary judgment briefing schedule. The DC district court has not yet ruled on the motion.
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