Overview of CERCLA/EPCRA Reporting Rule

In December 2008, the EPA determined in a final rule that all large CAFOs must notify state and local emergency response officials about ammonia and hydrogen sulfide emissions from their operations if they emit 100 pounds or more of these substances during any 24-hour period.  Telephone notifications were to be made no later than January 20, 2009, and a written report was to be submitted within 30 days thereafter, to avoid severe penalties.  Large CAFOs must reassess their emissions on a yearly basis and file additional reports if emission increases are statistically significant.  Also, if a CAFO owner/operator becomes aware of information during the year before the annual review that would increase CAFO emissions above the upper bound estimate, such an increase would immediately need to report as a statistically significant increase. Any statistically significant increase in emissions would require telephone and written notification of the same entities listed above.  These reports are required to be made under the Emergency Planning and Community Right to Know Act (EPCRA).  Smaller AFOs were exempted from having to report under EPCRA.

Environmentalist groups and the National Pork Producers Council (NPPC) appealed the rule to the DC Circuit Court of Appeals with the environmental groups challenging the exemptions under both CERCLA (for all sizes of animal agriculture operations) and EPCRA (for AFOs), and the NPPC challenging EPA’s decision to require reporting under EPCRA. Environmental groups claim their members are hurt by the rule because they live by “industrial animal operations and are regularly exposed to hazardous air pollution from these operations.” They also claim that their members are “denied basic information about the type and quantity of hazardous pollutants in their communities, which would allow them to take precautionary steps to protect the health and well being of themselves and their families. Moreover, the Final Rule eliminates a valuable release database that could inform future government efforts to address the significant health and environmental threats posed by industrial animal operations.” On the other hand, NPPC appealed the rule arguing that CAFOs should be exempt from all reporting under both laws because that reporting is only supposed to be required to enable an emergency response in the event of an emergency. Since emissions from animal operations present no emergency situations, reporting should not be required.

On May 27, 2010 the Court granted the parties a joint motion to stay briefing the cases while the parties participated in a mediation program. Mediation broke down, and on June 28, 2010 the environmentalists filed a motion requesting the Court to re-establish the briefing schedule. On July 7, 2010, the EPA filed a motion in opposition to the environmentalists’ motion because the EPA sought a voluntary remand to reconsider the rule. The Court agreed to remand the rule to the EPa for reconsideration.  No further developments have occurred.

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-Sara Harris - Texas