In an April 11, 2017, opinion, a panel of the U.S. Court of Appeals for the D.C. Circuit vacated EPA’s December 2008 final rule that generally exempted farms from the reportable quantity (RQ) requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA) when ammonia (NH3) and hydrogen sulfide (H2S) are released from manure storage and handling operations.
The purpose of the RQ provisions is to ensure that federal, state, and local authorities receive information about hazardous releases so that response action is taken if public health is put at risk by the release. Both NH3 and H2S are regulated hazardous substances under CERCLA and EPCRA. But in its final rule and before the panel, the EPA contended that it had never taken response action based on notifications of air releases from animal waste and could foresee no circumstances where it would. Therefore, the RQ requirement served no purpose, and the exemption from it was appropriate.
But based on information provided by stakeholders, the panel found that provision of RQ information regarding these releases served several important functions. Also, the panel said that the final rule falls outside the Agency’s statutory de minimis power—that is, the authority to create certain categorical exceptions to a statute when little benefits result.
De Minimis Exception
“The dispute brings into play our longtime recognition that agencies have implied de minimis authority to create even certain categorical exceptions to a statute when the burdens of regulation yield a gain of trivial or no value,” said the panel.
Interestingly, in its discussion, the panel relies heavily on its understanding of EPA’s power to issue de minimis exceptions even though the Agency itself never explicitly invoked the de minimis exception in its defense of the rule. But, according to the court, the EPA analysis tracks the exception’s logic. Also, the panel noted that one intervenor, the U.S. Poultry and Egg Association, specifically pointed to the agency’s de minimis power as a reason to uphold the final rule.
“It thus poses the question whether the record adequately supports the EPA’s conclusion that these animal-waste reports are truly ‘unnecessary,’” said the panel.
100-lb RQ
The suit challenging EPA’s final rule was filed by five environmental groups that principally argued that CERCLA and EPCRA do not permit the EPA to grant reporting exemptions but, instead, require reports of any and all releases over the RQ. The RQ for both NH3 and H2S is 100 pounds (lb) per day. The final rule did not exempt concentrated animal feeding operations (CAFOs) from the RQ provision. But the panel said it recognized that there has been no clear resolution of the best way to measure these releases from farms, “which after all do not come conveniently out of a smokestack.” Still, no party in the case argued that the daily NH3 and H2S emissions from commercial farms fall below the 100-lb threshold.
“The de minimis doctrine is an expression of courts’ reluctance ‘to apply the literal terms of a statute to mandate pointless expenditures of effort,’ and is thus a ‘cousin’ of the doctrine permitting courts to avoid absurd results in the face of a statute’s seemingly plain meaning,” the panel explained. “But that de minimis power is strictly limited; an agency can’t use it to create an exception where application of the literal terms would ‘provide benefits, in the sense of furthering the regulatory objectives, but the agency concludes that the acknowledged benefits are exceeded by the costs.’”
Locating the Source
The EPA purported to find an absence of regulatory benefit. It asserted that the animal-waste ‘reports are unnecessary because, in most cases, a federal response is impractical and unlikely.’ (emphasis added) The panel points out that the “in most cases” qualification suggests that at least some circumstances would call for a response. And yet, other portions of the final rule seem to reject that notion and, instead, state simply that the EPA could “not foresee a situation where the Agency would initiate a response action as a result of such notification.”
But the panel pointed to descriptions of such situations included in stakeholder comments to the rulemaking. Specifically, commenters explained that when manure pits are agitated for pumping, NH3, H2S, and methane are rapidly released from the manure and may reach toxic levels or displace oxygen, increasing the risk to humans and livestock.
“That risk isn’t just theoretical,” said the panel. “People have become seriously ill and even died as a result of pit agitation.”
Given these circumstances and the associated risk, the panel needed to decide if reporting under the RQ could serve an effective response action. The decision that it does was supported by a statement from the National Association of SARA Title III Program Officials, quoted by the court:
“The 911 call that comes in from a member of the public in the dark of night reporting a foul or chemical odor rarely contains information on the source. The responders are forced to guess at that source as they gauge their response. ‘Immediate’ release reporting by facilities under EPCRA provides crucial information to those responders. Without such information responders are forced to blindly drive through an area not knowing what they are looking for—is it a vehicle accident, a facility release or something worse will be the question in their minds.”
Effective Response
Once the source of the release is determined, the EPA has broad authority to respond. Responses can range from enormously invasive measures (like permanently relocating residents) to relatively minor ones (like digging protective trenches or requiring covers). The Agency can also order cleanup of the hazardous substances as well as monitoring, investigative, and preventative actions designed to evaluate and minimize the impact of possible releases.
“The record therefore suggests the potentiality of some real benefits,” said the panel.
The panel added that it is possible that these benefits are outweighed by the costs, which the EPA estimates as substantial. The final rule indicated that the exemption would save farms more than a million hours and more than $60 million in compliance costs and cut out roughly 160,000 hours and $8 million in government costs related to those reports.
“But as we have noted, such facts (assuming their correctness) are not enough to support application of the de minimis exception,” the panel concluded.
The opinion of the D.C. circuit in Waterkeeper Alliance et al. v. EPA is here.