October 4, 2018
Several environmental groups sued U.S. EPA for the decision that air emissions from manure do not need to be reported under the Emergency Preparedness and Community Right-To-Know Act (EPCRA). The complaint was filed on September 28.
The environmental groups are challenging EPA’s EPCRA decision as expressed in interpretive guidance that the agency issued last April after the Fair Agricultural Reporting Method (FARM) Act was passed by Congress earlier this year. The FARM Act excluded animal agriculture from reporting under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This CERCLA measure has the practical effect of also excluding animal agriculture from state and local emergency reporting requirements under EPCRA, given the way that CERLCA and EPCRA are interlinked.
The environmental groups are asking that the court require concentrated animal feeding operations (CAFOs) to report because the animals’ manure "emit[s] dangerous quantities of toxic gas" and the EPCRA exclusion, as interpreted by EPA, "leaves communities without the information necessary to protect against these harmful releases — information that could be used to avoid exposure, initiate clean-ups, investigate facilities, propose remedial measures, and otherwise keep communities safe from these poisonous substances." The complaint adds that "This, in turn, leaves them vulnerable to exposure to hazardous chemicals released by animal waste at CAFOs."
While it is expected that EPA will vigorously defend its position as a matter of law, the court may defer deciding on this suit because of a new EPA rulemaking on this specific matter. EPA is expected in October to seek public comment on a formal proposed rulemaking implementing the FARM Act’s provisions, which were reflected in last April’s interpretive guidance on CERCLA and EPCRA reporting. Lawsuits will certainly challenge that rulemaking when it is completed. UEP will be working with others in animal agriculture to submit comments on that rule, which is expected to be final in 2019 and continue to monitor this most recent lawsuit and EPA’s response.
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