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Don't Waste Arizona Inc. v. Hickman's Egg Ranch Inc.

United States District Court, D. Arizona

September 25, 2018

Don't Waste Arizona Incorporated, Plaintiff,
Hickman's Egg Ranch Incorporated, Defendant.



         Pending before the Court are Plaintiff's Motion for Clarification, (Doc. 115), the parties' briefs concerning the retroactive application of the FARM Act, (Docs. 119, 120), and the supplemental briefing concerning the reporting of emissions from animal waste under EPCRA, (Docs. 126, 127).


         Defendant Hickman's Egg Ranch Inc. operates two large chicken egg facilities, each emitting more than one thousand pounds of ammonia from chicken manure per day. (Doc. 61, Exh. 4). Plaintiff Don't Waste Arizona Inc. (“DWA”) is an environmental nonprofit with members who live in the vicinity of Hickman's facilities. (Doc. 1). DWA brought this suit against Hickman's based on its failure to report ammonia emissions in violation of the Emergency Planning and Community Right-to-Know Act. Id. In preparation for a bench trial, the parties asked the Court to clarify various legal questions. First, the Court addresses whether EPCRA requires reports of emissions from animal waste. Second, the Court addresses relevant burdens of proof.


         I. Defendant's Reporting Requirement Under EPCRA

         A. EPCRA Background

         The Emergency Planning and Community Right-to-Know Act (“EPCRA”) maintains “a framework of state, regional, and local agencies designed to inform the public about the presence of hazardous and toxic chemicals, and provide for emergency response in the event of health-threatening release[s].” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 86 (1998); 42 U.S.C. §§ 11001-11050. EPCRA requires facilities which produce, use, or store a hazardous chemical to report any large-scale release of certain hazardous chemicals to the state emergency response commission (“SERC”) and the local emergency planning commission (“LEPC”). 42 U.S.C. § 11004. Any person may commence a lawsuit against an owner or operator for failure to submit a follow-up emergency notice. 42 U.S.C. § 11046(a)(1)(A)(i).

         EPCRA requires facilities to report the release of a hazardous chemical under three circumstances, listed in three separate subsections. 42 U.S.C. § 11004(a).[1] Under the first and third subsections, a facility must report a release if “such release requires a notification under section 103(a) of the Comprehensive Environmental Response, Compensation and Liability Act.”[2] 42 U.S.C. § 11004(a)(1); see also 42 U.S.C. § 11004(a)(3). Under the second subsection, a facility may still be required to report a release of an EPCRA hazardous chemical (even if notification under CERCLA is not required) if the release is (A) not a federally permitted release, (B) exceeds a certain amount determined by regulation, and (C) “occurs in a manner which would require notification under section 103(a) of CERCLA.” 42 U.S.C. § 11004(a)(2). Notwithstanding any of the three scenarios that might trigger the EPCRA reporting requirement, the EPCRA statutory definition of “hazardous chemical” explicitly exempts “[a]ny substance to the extent it is used in routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.” 42 U.S.C. § 11021(e)(5).

         In 2008, the EPA updated federal regulations concerning the reporting obligation in CERCLA section 103(a). The 2008 rule generally exempted farms from reporting releases of hazardous chemicals from animal waste under CERCLA, but the regulation carved out large, concentrated animal feeding operations, known as “CAFOs, ” and required them to report threshold releases of hazardous chemicals. 73 Fed. Reg. 76948, 76950-53 (Dec. 18, 2008).[3] However, the 2008 Rule pertained only to the CERCLA section 103(a) reporting requirements (and the associated EPCRA reporting requirements based on CERCLA section 103(a)). The EPA explicitly did not define “routine agricultural operations” in the 2008 rule. 73 Fed. Reg. 76948, 76951. The final rule did not reference the EPCRA definition of hazardous chemical in 42 U.S.C. § 11021(e), and it explicitly stated that the rule was not based on the EPCRA exception for routine agricultural operations, explaining, “The Agency is not, in this rule, defining . . . routine agricultural operations.” Id.

         In 2017, the District of Columbia Circuit considered the validity of the 2008 rule. Waterkeeper Alliance v. Environmental Protection Agency, 853 F.3d 527 (D.C. Cir. 2017). The D.C. Circuit vacated the 2008 final rule because it could not “be justified either as a reasonable interpretation of any statutory ambiguity or implementation of a de minimis exception.” Id. at 537-38. The vacatur of the 2008 final rule thus eliminated the CERCLA section 103(a) reporting exemption for animal waste on farms, and it also eliminated the regulations concerning the CAFO carve out. Id. at 538.

         In March 2018, Congress addressed the D.C. Circuit's vacatur of the 2008 Final Rule and passed legislation to reinsert the exemption relieving farms from reporting releases from animal waste under CERCLA section 103(a). Consolidated Appropriations Act of 2018 Title XI, Pub. L. 115-141, 132 Stat. 348 (2018). Known as the “Fair Agricultural Reporting Method Act” or “FARM Act, ” it states, “Section 103 of [CERCLA] is amended by . . . inserting the following: . . . In general.-This section shall not apply to-. . . (B) air emissions from animal waste (including decomposing animal waste) at a farm.” The FARM Act further defines animal waste as feces, urine, or other excrement from any form of livestock, poultry, or fish, and it defines farm as a site or area that is used for crop production or the raising or selling of animals.

         On August 1, 2018, the EPA published a new rule in response to the FARM Act and the D.C. Circuit's vacatur of the 2008 rule. 83 Fed. Reg. 37444 (Aug. 1, 2018). The new rule noted the removal of any provisions in the 2008 final rule. Id. at 37445. It then reinserted the CERCLA section 103 exemption for reporting air emissions from animal waste. Id. at 37445.

         B. Validity of ...

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