EPA to Seek Remand to Revise Livestock Emissions Reporting Exemption

I was invited to join this blog by James Chen and am excited to be a part of this. Some of you know me but to just give a little of my background. I grew up on a 1,000 acre diversified livestock farm (dairy cows, hogs and chickens) in Northern Indiana. I obtained B.S. degrees in Agronomy and Animal Science and an M.S. in International Agriculture with an emphasis in Ag. Econ. I attended the University of Arkansas Law School. Since law school I have worked as an Extension Specialist for the University of Missouri and then as commodity director for Indiana Farm Bureau. I then spent 7 years as the livestock policy specialist for the American Farm Bureau. I have been General Counsel to Rose Acre Farms for the past five years. Rose Acre Farms is the largest family owned and operated layer operation in the US. We have approximately 25 million laying chickens in 6 (soon to be 7) states. My main interests are in environmental ag law and regualtions and ag anti-trust and competition.

EPA will ask a federal appeals court to remand its litigated rule exempting concentrated animal feeding operations (CAFOs) from reporting most hazardous
air emissions under Superfund and right-to-know laws so it can revise the rule, but environmentalists say talks on the issue have failed and they are
urging the court to allow their suit to move forward.

EPA in a July 7 filing with the U.S. Court of Appeals for the District of Columbia Circuit says that the agency intends to seek a voluntary remand of its 2008 CAFO emissions reporting rule that created the exemptions from reporting requirements. The agency says it wants the remand so that it can reconsider the rule, including the various complaints raised by environmentalists and industry groups that filed suit over the CAFO reporting exemptions.

The D.C. Circuit in 2009 agreed to a request from all parties to hold the case in abeyance pending settlement talks. "If this matter is remanded to EPA for further administrative consideration, there will be nothing before this Court for briefing," EPA says.

EPA's filing is in response to a June 28 filing from environmentalists in the suit, Waterkeeper Alliance, et al. v. EPA, in which they say that the settlement talks have failed and the lawsuit should proceed. The environmental groups argue that the agency has had plenty of time to retract the rule and urge the court to reopen the case, according to the filing. "Briefing should proceed because EPA cannot address the deficiencies of the final rule by voluntarily tinkering with the terms of the reporting exemptions."

EPA's rule exempted all CAFOs from reporting their hazardous air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act, and exempted
all but the largest CAFOs from reporting emissions under the Emergency Planning and Community Right-to-Know Act. Environmentalists, including Waterkeeper Alliance,
Sierra Club, the Humane Society of the United States, and the Environmental Integrity
Project, filed suit over the rule arguing any exemption from reporting under the laws is illegal. The groups argue that the exemptions violate the plain language of the laws and that EPA
lacks the authority to carve out the exemptions for the livestock industry. Even though EPA is finalizing data from a study of CAFO emissions, the groups say there is no reason to delay revising the rule until the study is final because the groups say EPA acknowledged the rule was based on the likelihood of emergency personnel responding to reports, not the amount of emissions or health risks.

The industry group National Pork Producers Council sued arguing CAFOs should be exempt from all reporting under both laws. The National Chicken Council, National Turkey Federation, and the U.S. Poultry & Egg Association intervened on behalf of EPA.