In a new effort to clarify the breadth of exemptions for farm animal waste emission reporting, EPA has proposed a rule that exempts such emissions from the reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA). The proposal follows a court battle over an earlier version of the reporting exemption. With this proposed rule, the EPA seeks to remove a burdensome reporting obligation that does not fit within the original purpose of EPCRA.

This emission reporting issue has been in and out of the courts for more than a decade, and the latest chapter in the controversy occurred in April 2017 when the U.S. Court of Appeals for the D.C. Circuit held that agricultural operations were required to report air emissions under federal laws, specifically the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and EPCRA. This holding renewed the reporting confusion for agricultural producers, given the obvious difficulty in estimating and reporting emissions from animal wastes. In response to the confusion, Congress passed the Fair Agricultural Reporting Method Act (FARM Act) to help clarify this issue. The FARM Act expressly provides that “air emissions from animal waste at a farm”  are exempt from reporting under CERCLA, but was silent on EPCRA.

Earlier this summer, the EPA adopted a direct final rule to address the April 2017 D.C. Circuit decision by removing the EPCRA rule language and by codifying the statutory reporting exemption under CERCLA found in the FARM Act. EPA also, separately, provided guidance that animal waste reporting was exempt under EPCRA. Environmental groups have challenged the EPCRA guidance in yet another action in federal court, claiming that the EPCRA guidance was not properly adopted by EPA and noting that such an exemption is not found in the FARM Act.

In the latest proposed rule, the EPA addresses the EPCRA issue directly and explains in detail the interplay between the statutes which justify the exemption.

In the latest proposed rule, the EPA addresses the EPCRA issue directly and explains in detail the interplay between the statutes which justify the exemption. The proposed rule exemption under EPCRA will continue the agency’s goal of  a consistent reporting exemption for animal waste emissions under both EPCRA and CERCLA. Comments to the proposed rule must be received by EPA on or before December 14, 2018.

Meet Leonard

Austin partner Leonard H. Dougal represents a diverse group of clients in complex permitting and water matters, including energy companies involved in shale development, power generation companies, real estate developers, and special utility districts. He is also active in water quality issues where he represents mining and energy companies, developers, and agricultural operators in Clean Water Act permit and compliance matters. A Chambers USA-ranked attorney in Texas for environmental matters, Leonard is a sought-after speaker at bar and continuing legal education seminars regarding emerging water law issues. He also co-authored of two chapters in the treatise on Texas water law, The Essentials of Texas Water Resources.

Meet Alisha

Alisha Mehta is an associate in the Environmental and Legislative section of Jackson Walker’s Austin office. Prior to joining Jackson Walker, Alisha served as a Judicial Law Clerk for Justice Don Willett at the Supreme Court of Texas.