United States Court of Appeals, District of Columbia Circuit
December 12, 2016
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
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
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
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.
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.
Williams Senior Circuit Judge.
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 sulfide. While those emissions are
miniscule for pet owners, they can be quite substantial for
farms that have hundreds or thousands of animals.
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. §
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).
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 (D.C. Cir. 1989) (quoting Alabama Power
v. Costle, 636 F.2d 323, 360-61 (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
* * *
has long sought to ensure that federal, state, and local
authorities can adequately respond when hazardous chemicals
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 (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 ...