Appeals ruling could add reporting

WASHINGTON, D.C. -- Livestock advocates in the Upper Great Plains say it's too soon to know how a District of Columbia ruling that sided with environmentalists will change legal risks for feedlot operators.

Livestock feedlots of all sizes could have increased pollution reporting requirements because of a U.S. Appeals Court decision on April 11, 2017, in Washington, D.C.Photo taken Jan. 9, 2014, at Walcott, N.D. (Forum News Service/Agweek/Mikkel Pates)

WASHINGTON, D.C. - Livestock advocates in the Upper Great Plains say it's too soon to know how a District of Columbia ruling that sided with environmentalists will change legal risks for feedlot operators.

A federal appeals court in Washington, D.C., on April 11 issued a ruling that vacates an Environmental Protection Agency rule that exempts some feedlots from pollution reporting requirements.

The case is Waterkeeper Alliance et al. v. U.S. Environmental Protection Agency in the U.S. Court of Appeals for the District of Columbia Circuit. It overturns an EPA rule in 2008 that exempted all but the largest facilities - confined animal feeding operations - from some requirements related to the Comprehensive Environmental Response, Compensation and Liability Act.

"Now that the D.C. circuit court has ruled, it will be up to Congress to pass legislation clarifying their intentions," says Scott Ressler, environmental services director with the North Dakota Stockmen's Association.

If that should fail, beef industry lobbyists will need to push for appropriation language that "prohibits the EPA from using funds to enforce CERCLA reporting requirements against farms," he says.


Scott Yager, environmental counsel for the National Cattlemen's Beef Association, says the requirements don't take effect for 45 days, until late May.

"This might not be the end of the story as far as the lawsuit goes," he says, noting there are judicial, administrative and legislative options.

Preliminary "back-of-the-envelope" estimates by the NCBA, the National Pork Producers Council and others show that cattle operations of as few as 208 animals might produce enough ammonia to trigger reporting, Yager says. He adds that EPA officials didn't want to impose the rules on livestock because their impact is more diffused than things like chlorine gas explosions, for which the rules were initially created.

"It was designed for reporting acute releases for public health," he says.

Counting cost

Ressler says that if the ruling stands, it is possible that it is impractical or excessively costly to determine whether their emissions exceed thresholds. He says it also shifts regulatory authority onto the Department of Emergency Management, which has no history with applying the rules to the livestock industry. He says some of the emissions reporting might be inappropriate for the colder climate in the Northern Great Plains.

Julie Ellingson, executive director of the North Dakota Stockmen's Association, says it's another case of the courts and environmental groups "pushing us" to report on rules that are appropriate to manufacturing operations.

According to trade journals on the case, the EPA defended its rule, saying the reports are unnecessary, in part because the agency "couldn't imagine a scenario in which it would take enforcement action." Environmental opponents argued that all of the facilities should report hazardous substances - particularly ammonia and hydrogen sulfide - and that reporting might not be excessive.


All sizes now

The ruling means feeding operations of all sizes are subject to CERCLA and EPCRA hazardous substances reporting requirements.

Murray Feldman, a partner in the Holland & Hart LLP firm in Boise, Idaho, says he's telling his clients that the reporting rules apply to all livestock producers, regardless of size. He says even if the industry manages to cut funding for EPA enforcement, that doesn't prevent non-governmental organizations and citizen groups from pursuing actions against producers in court.

The past exemption roughly followed the EPA definitions of CAFOs for water discharge permits - 1,000 or more cattle, or 250,000 poultry, for example. Now, the reporting will apply to smaller producers.

Feldman says the added paperwork in itself may not be "burdensome in isolation" but just "adds another step" for the livestock industry. The reports could be as simple as applying estimates of release based on agricultural extension service publications.

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