United States District Court, D. Arizona
MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE
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).
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.
Defendant's Reporting Requirement Under EPCRA
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.
requires facilities to report the release of a hazardous
chemical under three circumstances, listed in three separate
subsections. 42 U.S.C. § 11004(a). 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.” 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.
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). 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
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.
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.
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.
Validity of ...