Wednesday, July 18, 2007

Split Appeals Court Upholds EPA Agreement With Animal Feeding Operations

Jul 17: In the case of Association of Irritated Residents v. EPA, in the U.S. Court of Appeals, D.C. Circuit, Case No. No. 05-1177 (Consolidated with 05-1336, 05-1337, 06-1053, 06-1209, 06-1320, 07-1038). Community and environmental groups petition for review of agreements between EPA and animal feeding operations (AFOs). The agreements are designed to bring the facilities into compliance with the permitting and reporting requirements of three environmental statutes. Petitioners argue that the agreements are rules disguised as enforcement actions, that EPA did not follow proper procedures for rulemaking, and that EPA exceeded its statutory authority by entering into the agreements. In a split decision, the Appeals Court held that "the agreements do not constitute rules, but rather enforcement actions within EPA’s statutory authority." The majority dismissed the petitions for review because "exercises of EPA’s enforcement discretion are not reviewable by this court."

In a dissenting argument, Justice Judith Rogers says, " imposing a civil penalty on AFOs in the absence of individualized determinations of statutory violations, EPA has attempted to secure the benefits of legislative rulemaking without the burdens of its statutory duties. Our precedent does not permit the boundless stretching of Chaney [Heckler v. Chaney, 470 U.S. 821, 832-33 (1985)] to undercut the purposes of notice-and-comment rulemaking..."

In the majority opinion the Appeals Court defined the pollutants and the issue saying the pollutants – ammonia, hydrogen sulfide, particulate matter, and volatile organic compounds – emanate from animal housing structures and areas used to store and treat manure... An AFO that releases these pollutants in sufficient quantities may be required to report them under CERCLA and EPCRA, and may be subject to various requirements under the Clean Air Act... An AFO emitting these pollutants in quantities below the statutory thresholds, however, has no obligation under the Acts to obtain permits or report its emissions.

Petitioners, a number of community and environmental groups, some of whose members live near AFOs argued that the AFOs emit particulate pollution and terrible odors, and that they attract hordes of flies that leave their droppings on everything from cars to outdoor furniture. As a result, petitioners claim that their members suffer effects ranging from reduced enjoyment of the outdoor portion of their property to adverse health effects such as respiratory and heart problems. Additionally, as long as the AFOs’ emissions are not definitively determined to be above or below the statutory thresholds, petitioners’ members suffer from the uncertainty of not knowing whether the AFOs’ emissions exceed legal limits, and not knowing how their long-term health may be affected. Because the Acts apply only to emissions above specified levels, EPA cannot enforce the statutory and regulatory requirements without determining an AFO’s emissions.

The present uncertainty hampers EPA’s ability to enforce the requirements of the Clean Air Act, EPCRA, and CERCLA against AFOs. To resolve the dilemma, EPA’s solution was to invite AFOs to sign a consent agreement under which each AFO will assist in developing an emissions estimating methodology. In exchange, EPA will not pursue administrative actions and lawsuits against the AFOs for a defined period of time. In the agency’s judgment, this is the “quickest and most effective way” to achieve compliance. To date, several thousand AFOs have signed Agreements. As data from the study is received, EPA will use it along with existing emissions data to develop scientifically sound tables or models for AFOs to estimate their emissions. Id. at 4960. In consideration for the AFOs’ assistance, EPA agrees not to sue participating AFOs for certain potential past and ongoing violations of the Acts for the duration of the study. Within 120 days after EPA publishes the new methodologies, however, the AFO must initiate compliance efforts such as applying for a permit. EPA predicts that this schedule will result in compliance by participating AFOs within about four years from the start of the study.

The Petitioners, however, believe that the AFOs should be forced to comply more quickly with the statutory requirements. They also argue that the procedures by which EPA entered into the Agreement did not afford them the meaningful opportunity for comment required by the Administrative Procedure Act. Petitioners challenged the Agreement before the agency while it was being developed, and now identify ten agency actions that they contend should be vacated.

In the dissent, Justice Rogers summarizes her opinion of the results of the agreement saying, "For a minimum penalty plus $2,500, an AFO can, under the enforcement protocol, avoid liability for any potential and ongoing violations of three statutes for at least a two-year period while EPA gathers and studies emissions data and for an indeterminate period thereafter while EPA develops and publishes new estimation methodologies... at no point are there repercussions beyond a possible future enforcement action if an AFO opts out of the agreement to be bound by the methodology regulations that EPA develops. Assuming no glitches, EPA’s endeavor to develop reliable methodologies could, according to the recommendations it has followed, take five, twenty, or even thirty, years. This is not an enforcement scheme at all, and is not a decision that Congress committed to agency discretion."

Access the complete opinion and dissent (
click here). Access EPA's website for the AFO Consent Agreement and Final Order for complete background documents (click here). Access the WIMS-EcoBizPort CAFO links for additional information (click here). [*Air, *Agriculture]