Here we go again: CERCLA/EPCRA
Regulation of livestock operation air emissions

By Kyle Weldon, law clerk, James D. Bradbury, PLLC and student, Texas A&M University School of Law

CERCLA and EPCRA are two environmental laws that can be applied to regulate the agricultural industry.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides a federal “Superfund” to clean up uncontrolled or abandoned hazardous waste sites as well as accidents, spills and other emergency releases of pollutants and contaminants into the environment.

The Emergency Planning and Community Right-to-Know Act (EPCRA) was designed to help improve local preparedness for chemical emergencies and to increase the public’s knowledge and access to information on chemicals at individual facilities, their uses, and releases into the environment.

Under both laws, parties must notify the National Response Center (for CERCLA) or state and local officials (for EPCRA) when they release “hazardous substances” into the air at levels that meet or exceed a set reportable quantity.

Confined animal feeding operations (CAFOs) are targeted under these laws, as ammonia and hydrogen sulfide (emitted from livestock waste) are considered “hazardous substances” under both CERCLA and EPCRA. Under both laws, the reportable quantity for ammonia and hydrogen sulfide is 100 pounds per day.

However, it is difficult to determine accurate emission levels from CAFOs, as an animal waste lagoon does not have a stack coming off the top (like an industrial facility) to provide accurate values.

In 2008, the federal Environmental Protection Agency (EPA) exempted “all farms that release hazardous substances from animal waste to the air” from reporting under CERCLA, but any CAFO with more than “700 mature dairy cows” or “1,000 cattle other than mature dairy cows” was required to provide the required notification under EPCRA. You may recall that many producers had to make a hurried filing without much guidance from EPA.

In response to the CERCLA exemption, environmental groups sued the EPA, arguing that the EPA did not have the authority to exempt CAFOs from reporting.

In April 2017, the Court of Appeals for the D.C. Circuit ruled in Waterkeeper Alliance v. EPA to vacate the EPA’s rule, ultimately siding with the environmental groups in holding that the CAFO exemption was inconsistent with statutory requirements.

In response to the Waterkeeper decision, 28 U.S. senators wrote a letter to EPA Administrator Scott Pruitt asking him to challenge the D.C. Circuit’s decision in order to “prevent the waste… of resources designated for emergency response programs,” and to protect agricultural producers from the enormous and uncertain burden of reporting.

It is likely that ag organizations and the EPA will appeal the decision to the U.S. Supreme Court. We will continue to monitor this issue.