June 25, 2020
Environmental legal challenges continue regarding the current exclusion of ag operations from the Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements. The exclusion eliminates the need for egg and animal feeding operations to report ammonia emissions to state or local emergency response authorities.
Legislation passed in 2018 excluded these emissions from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) reporting. This exclusion is understood, without any reservation by EPA and many legal authorities, to extend to EPCRA reporting given the way the two statutes are linked.
The legality of the CERCLA-EPCRA linkage has been disputed, as has the related rulemaking and guidance issued by EPA. This dispute is playing out in the Federal District Court in D.C. in a multi-year effort to force concentrated animal feeding operations (CAFOs) to report under EPCRA. The legal fight, formally between environmental groups and EPA, has been dormant. But last month the court issued an order that left one of the environmentalist’s challenges to EPA’s EPCRA guidance active. The legal ins and outs of this situation are complicated, but it does bring into question the 2018 law and EPA rulemaking regarding its implementation.
This EPCRA suit is now expected to proceed to summary judgment briefing. Several agricultural organizations are considering intervening to defend the interpretation of the 2017 legislation as extending to EPCRA reporting. Please contact UEP staff if you have questions or would like copies of the Court documents. (See Rural Empowerment Association for Community Help et al., v U.S. Environmental Protection Agency et al., case number 1:18-cv-02260-TJK.)
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