853 F.3d 527 (D.C. Cir. 2017), 09-1017, Waterkeeper Alliance v. Environmental Protection Agency

Docket Nº:09-1017, 09-1104
Citation:853 F.3d 527
Opinion Judge:Williams, Senior Circuit Judge :
Party Name:WATERKEEPER ALLIANCE, ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT, U.S. POULTRY AND EGG ASSOCIATION, ET AL., INTERVENORS
Attorney:Jonathan J. Smith argued the cause for petitioners Waterkeeper Alliance, et al. With him on the briefs was Eve C. Gartner. David Y. Chung argued the cause for petitioner National Pork Producers Council. With him on the briefs were Richard E. Schwartz and Sherrie A. Armstrong. Ellen Steen entered ...
Judge Panel:Before: BROWN and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge. OPINION filed by Senior Circuit Judge WILLIAMS. Concurring opinion filed by Circuit Judge BROWN. Brown, Circuit Judge, concurring:
Case Date:April 11, 2017
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 527

853 F.3d 527 (D.C. Cir. 2017)

WATERKEEPER ALLIANCE, ET AL., PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT, U.S. POULTRY AND EGG ASSOCIATION, ET AL., INTERVENORS

Nos. 09-1017, 09-1104

United States Court of Appeals, District of Columbia Circuit

April 11, 2017

Argued December 12, 2016

Page 528

On Petitions for Review of Final Regulation Issued by the U.S. Environmental Protection Agency.

Jonathan J. Smith argued the cause for petitioners Waterkeeper Alliance, et al. With him on the briefs was Eve C. Gartner.

David Y. Chung argued the cause for petitioner National Pork Producers Council. With him on the briefs were Richard E. Schwartz and Sherrie A. Armstrong. Ellen Steen entered an appearance.

Daniel H. Lutz and Hope M. Babcock were on the brief for amici curiae American Lung Association and American Thoracic Society in support of petitioners Waterkeeper Alliance, et al.

Jonathan Skinner-Thompson and Erica M. Zilioli, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief was John C. Cruden, Assistant Attorney General. Sue S. Chen and Cynthia J. Morris, Attorneys, U.S. Department of Justice, entered appearances.

Eve C. Gartner and Jonathan J. Smith were on the brief for intervenors-respondents Waterkeeper Alliance, et al.

Richard E. Schwartz and David Y. Chung were on the brief for intervenor-respondent U.S. Poultry and Egg Association. Sherrie A. Armstrong and James T. Banks entered appearances.

Before: BROWN and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge WILLIAMS. Concurring opinion filed by Circuit Judge BROWN.

OPINION

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Williams, Senior Circuit Judge

Anyone with a pet knows firsthand that raising animals means dealing with animal waste. But many of us may not realize that as the waste breaks down, it emits serious pollutants--most notably ammonia and hydrogen

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sulfide. While those emissions are miniscule for pet owners, they can be quite substantial for farms that have hundreds or thousands of animals.

Two provisions of federal law--sections of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (" CERCLA" ) and the Emergency Planning and Community Right-to-Know Act of 1986 (" EPCRA" )--require parties to notify authorities when large quantities of hazardous materials (such as ammonia or hydrogen sulfide) are released into the environment. See 42 U.S.C. § 9603 (CERCLA); id. § 11004 (EPCRA). On learning of such a release, the EPA has broad powers to take remedial actions or order further monitoring or investigation of the situation. See id. § 9604.

In 2008 the EPA issued a final rule that generally exempts farms from CERCLA and EPCRA reporting requirements for air releases from animal waste. (" Air releases" refer only to emissions made into the air, rather than into water or soil.) The EPA reasoned that those " reports are unnecessary because, in most cases, a federal response is impractical and unlikely." CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste at Farms, 73 Fed.Reg. 76,948, 76,956/1 (Dec. 18, 2008) (" Final Rule " ). In a change from the proposed rule, the EPA somewhat limited the exemption. Commenters had expressed a " desire to receive information regarding releases from large concentrated animal feeding operations," known as " CAFOs," which generally house thousands or even tens of thousands of animals. In response, the EPA retained the reporting requirement for CAFOs under EPCRA, which, as we'll see in more detail later, has a public-disclosure requirement that's missing from the relevant CERCLA provisions. See id. at 76,950/2; see also id. at 76,952/1-2, 76,953/3; (CAFO thresholds).

A number of environmental groups objected, claiming that the Final Rule ran afoul of the underlying statutes (and was therefore outside the EPA's delegated authority). The dispute brings into play our longtime recognition that agencies have " implied de minimis authority to create even certain categorical exceptions to a statute 'when the burdens of regulation yield a gain of trivial or no value.'" Public Citizen v. FTC, 869 F.2d 1541, 1556, 276 U.S.App.D.C. 222 (D.C. Cir. 1989) (quoting Alabama Power v. Costle, 636 F.2d 323, 360-61, 204 U.S.App.D.C. 51 (D.C. Cir. 1979)). Although the EPA never explicitly invokes the de minimis exception, its analysis tracks the exception's logic. And intervenor U.S. Poultry and Egg Association specifically pointed to the agency's de minimis power as a reason to uphold the Final Rule. It thus poses the question whether the record adequately supports the EPA's conclusion that these animal-waste reports are truly " unnecessary." 73 Fed.Reg. at 76,956/1. By contrast, the environmental petitioners' argument, when framed in the language of Alabama Power, is essentially that the reports " provide benefits, in the sense of furthering the regulatory objectives." 636 F.2d at 361. In light of the record, we find that those reports aren't nearly as useless as the EPA makes them out to be. (We do not address the potential questions of whether the reports' costs outweigh their benefits and whether the exact statutory language (discussed below) authorizes an exception for measures failing a cost/benefit analysis; the EPA makes no claim for such a reading of the statute.) We therefore grant Waterkeeper's petition and vacate the Final Rule.

* * *

Congress has long sought to ensure that federal, state, and local authorities can adequately respond when hazardous chemicals

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threaten public safety or the environment. CERCLA gives federal authorities (generally the EPA) broad power to investigate and respond to actual or threatened releases of hazardous substances. See 42 U.S.C. § 9604. And since the EPA can't respond to releases it doesn't know about, § 103 of CERCLA requires parties to immediately notify the National Response Center (" NRC" ) of any release of a hazardous substance over a threshold set by the EPA--known in regulatory speak as the " reportable quantity." See id. § 9603; Fertilizer Institute v. EPA, 935 F.2d 1303, 1306, 290 U.S.App.D.C. 184 (D.C. Cir. 1991). The NRC, which is staffed by the U.S. Coast Guard and " acts as the single [federal] point of contact for all pollution incident reporting," 40 C.F.R. § 300.125(a), must " convey the notification expeditiously to all appropriate Government agencies, including the Governor of any affected State," 42 U.S.C. § 9603(a). After receiving a report from the NRC, the EPA determines if a response is appropriate. See 40 C.F.R. § 300.130(c).

EPCRA has a parallel reporting mandate, except that it requires the relevant parties to notify state and local (rather than federal) authorities whenever covered pollutants (which it refers to as " extremely hazardous substances" ) are released into the environment. See 42 U.S.C. § 11004; see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 86, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

The parties here focus on two of the hazardous substances emitted by animal waste as it decomposes--ammonia and hydrogen sulfide. (There are other such substances (e.g., nitrous oxide, methane, volatile organic compounds), see 73 Fed.Reg. at 76,950/2-3; see also National Research Council of the National Academies, Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs 50-56 (2003) (" National Research Council Report" ), but we need not address them.) The EPA has classified ammonia and hydrogen sulfide as both CERCLA " hazardous substances" and EPCRA " extremely hazardous substances" ; the EPA set the reportable quantity for each at 100 pounds per day. See 40 C.F.R. § 302.4(a) (CERCLA); id. pt. 355 App. A (EPCRA). None of the parties contends that the daily emissions of commercial farms fall below that threshold.

There appears to have been no clear resolution of the best way to measure these releases, which after all do not come conveniently out of a smokestack. See National Research Council Report at 2, 99-101; Draft Air Emissions Estimating Methodologies for Animal Feeding Operations, EPA, https://www.epa.gov/afos-air/draft-air-emissions-estimating-methodologies-animal-feeding-operations (last visited Mar. 24, 2017). The statute accommodates the problem a bit by providing for annual notice of so-called " continuous release[s]," 42 U.S.C. § 9603(f)(2), i.e., releases that are " continuous and stable in quantity and rate," 40 C.F.R. § 302.8(a), subject to a requirement of special notification for a " statistically significant increase in the quantity . . . above that previously reported," 42 U.S.C. § 9603(f)(2), which the EPA has defined as an increase " above the upper bound of the reported normal range," 40 C.F.R. § 302.8(b).

In December 2007, the EPA proposed exempting farms from CERCLA and EPCRA reporting of air releases from animal waste. See CERCLA/EPRCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste, 72 Fed.Reg. 73,700 (proposed Dec. 28, 2007) (" Proposed Rule " ). The EPA noted that it had never taken response action based on notifications of air releases from animal waste. Id. at 73,704/2.

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Nor could the Agency " foresee a situation where [it] would take any future response action as a result of such notification[s] . . . because in all instances the source (animal waste) and nature (to the air over a broad area) are such that on-going releases makes an emergency response unnecessary, impractical and unlikely." Id. The EPA specifically requested comments " on whether there might be a situation where a response would be triggered by...

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