We previously discussed the D.C. Circuit’s decision in Waterkeeper Alliance v. EPA, 853 F.3d, to strike down EPA’s regulation that exempted farms from air pollution reporting requirements for releases of hazardous substances from animal wastes. In October 2017, EPA petitioned the D.C. Circuit to stay the mandate in that case. On November 22, the D.C. Circuit granted EPA’s motion to stay the mandate until January 22, 2018.

The stay gives farmers an additional two months before they have to start reporting. It also provides an opportunity for farmers to familiarize themselves with EPA’s new guidance which helps farmers calculate emissions from beef, dairy, equine, swine and poultry operations.

 

Last week, the U.S. Environmental Protection Agency (“EPA”) filed a motion in the D.C. Circuit asking the court to delay the reporting requirement until 2018. Unless the motion is granted, farms with reportable releases of hazardous substances from animal waste must begin reporting those releases next Wednesday, November 15, 2017.

On November 9, the National Pork Producers Council and the United States Poultry and Egg Association filed a motion in support of EPA’s request to postpone the reporting requirement. According to the motion, the additional time is needed for three reasons: (1) the new emissions estimation and reporting requirements are causing farmers confusion and concern; (2) the National Response Center is not yet equipped to handle the thousands of telephone reports from farmers reporting ammonia emissions; and (3) EPA needs additional time to finalize its emissions calculation and reporting guidance.

The same day, Waterkeeper Alliance filed a motion in opposition on the grounds that EPA has already issued sufficient guidance for farmers to comply with the emissions reporting requirements. Waterkeeper Alliance also asked the D.C. Circuit to clearly state in the mandate that it’s April 2017 Waterkeeper Alliance v. EPA opinion does not permit the EPCRA interpretation EPA announced in its interim guidance.  Finally, Waterkeeper Alliance asked the D.C. Circuit to retain jurisdiction over the matter for three years to ensure that EPA implements and enforces the reporting mandate.

On Monday October 30, the U.S. Environmental Protection Agency (“EPA”) filed a motion Monday in the D.C. Circuit asking the court to delay the reporting requirement until January 18, 2018. Unless the motion is granted, owners or operators of farms with reportable releases of hazardous substances from animal waste must begin reporting those releases on November 15, 2017.

Since April, EPA has been developing guidance to help farms come into compliance with requirements to report certain releases of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and Emergency Planning and Right-to-Know Act (“EPCRA”).

With regard to CERCLA reporting, last week, EPA released a preliminary guidance and solicited public input. You can read our analysis of the preliminary guidance here. In the motion to delay the reporting requirement, EPA requests additional time to finalize its guidance and incorporate feedback received. EPA is also developing a streamlined continuous release reporting form designed specifically for farms.

With respect to EPCRA reporting, EPA issued a preliminary interpretation of EPCRA provisions as excluding farms that use substances in routine agricultural operation from EPCRA reporting requirements. Under the statute, only facilities where “hazardous chemicals” are “produced, used, or stored” are required to report. Excluded from the definition of “hazardous chemical” is “any substance to the extent it is used in routine agricultural operations.” In its preliminary interpretation, the EPA states that “the feeding and breeding of animals, as well as the expected handling and storage of the animals’ waste, would…be considered a routine agricultural operation,” exempt from EPCRA’s reporting requirements. EPA plans to initiate a rulemaking formalizing this interpretation within the next two months.

Our environmental attorneys can help potentially affected farm owners and operators understand and meet these release reporting requirements. For more information on how these regulations may impact your operation, please contact Robert Wilkinson or Megan McLean of Husch Blackwell’s Environmental team.

We previously discussed the decision of the D.C. Circuit in Waterkeeper Alliance v. EPA, 853 F.3d, striking down EPA’s regulation that exempted farms from air pollution reporting requirements for releases of hazardous substances from animal wastes and EPA’s petition to stay the mandate in that case until late January 2018.  The D.C. Circuit responded to that petition on August 16 and ordered the issuance of the mandate be stayed through November 14, 2017. The Court’s order stated that “if necessary, EPA may request an extension of the stay” but clarified that any request for an extension should include a status update on EPA’s efforts to develop guidance.  Unless an additional stay is granted by the Court, owners or operators of farms with reportable releases of hazardous substances from animal waste must begin reporting those releases on November 15, 2017.

On October 26, EPA issued guidance for reporting releases of hazardous substances from animal waste.  The EPA guidance notes that the typical hazardous substances released from animal waste include ammonia and hydrogen sulfide and that release of 100 pounds or more of either substance from an entire farm over a 24 hour period will trigger the reporting obligation.  The EPA guidance also provides a number of tools for calculating such emissions from beef, dairy, equine, swine and poultry operations.

Our environmental attorneys can help potentially affected farm owners and operators understand and meet these release reporting requirements. For more information on how these regulations may impact your operation, please contact Robert Wilkinson or Megan McLean of Husch Blackwell’s Environmental team.

 

On February 17, 2017, we blogged about the Fifth Circuit’s ruling in Markle Interests LLC v. U.S. Fish & Wildlife Service, upholding the Service’s designation of 1500 acres of Louisiana property as critical habitat for the dusky gopher frog, despite the absence of the frog from that land for over 50 years and the complete inability of the property to support the frog.

Markle has now filed a petition for certiorari, supported by a number of amici curiae, including the Chamber of Commerce and 18 state attorneys general.  The same 18 attorneys general have filed suit in District Court to enjoin the 2016 amendments to the regulations.

In April 2017, the D.C. Circuit issued a decision in Waterkeeper Alliance v. EPA, 853 F.3d 527, which, if upheld, will require approximately 63,000 small- and medium-sized farms that were previously exempt from the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements to come into compliance. Read Husch Blackwell’s analysis of the decision and its implications here.

Earlier this week, the U.S. Environmental Protection Agency (EPA) filed a motion to stay the mandate for six months. If the stay is issued, farms will have until January to come into compliance with the reporting requirements. It will also give the farming industry more time to file a petition for certiorari with the US Supreme Court and challenge the D.C. Circuit decision.   Otherwise, October 1 will be the deadline for filing a petition for certiorari as the mandate will be issued on that date and the reporting requirement will then take immediate effect.

According to EPA, farmers from all over the country have asked EPA for help in calculating their emissions. A stay is needed so the agency can develop guidance on how to measure emissions from animal waste and comply with the new reporting requirements. A stay would also provide farms relief from enforcement actions while they come into compliance. EPCRA and CERCLA contain citizen suit provisions and noncompliance carries the risk of administrative, civil, or even criminal penalties. A stay of the issuance of the mandate would allow farms temporary relief from these risks and enable them to focus on coming into compliance.

On February 9, 2017, we posted about legal challenges to designations of endangered species by the U.S. Fish & Wildlife Service, when the specie is confined to a single state. The Tenth Circuit Court of Appeals has reversed the first of these challenges. People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service, No. 14-4151 (2017).

The court of appeals held that the Endangered Species Act (ESA), taken as a whole, substantially affected interstate commerce. It distinguished Supreme Court decisions striking down the Violence Against Women Act and the Gun-Free School Zones, on the ground that those were small parts of omnibus bills covering a wide variety of disparate subjects. By contrast, the ESA was a comprehensive bill addressed to one particular problem.

The court of appeals reasoned that the ESA as a whole clearly had a substantial effect on interstate commerce. First, prohibiting the taking of endangered species has a clear relationship to economic activity, the very activity which in many cases led to the endangerment finding. Second, Congress believed that by conserving species, it would promote commerce in the long term. Third, there is a multi-billion dollar-a-year illegal trade in endangered species.

The court of appeals also believed that regulation of purely intrastate species was necessary to the ESA’s comprehensive scheme. It found that 68% of endangered species were purely intrastate, so their exclusion would drive a gaping hole in the statute.

Expect a petition for certiorari.

The final Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption Rule (“Produce Safety Rule”) has proven to be one of the more confusing foundational rules issued by the U.S. Food and Drug Administration (“FDA”) under the Food Safety Modernization Act (“FSMA”). In particular, farmers have struggled to understand and come into compliance with the Produce Safety Rule’s complex agricultural water standards ever since FDA finalized the rule in 2015. In recognition of these challenges, the FDA announced on March 20, 2017, that it is exploring ways to simplify the testing requirements for agricultural water.

Currently, the Produce Safety Rule sets microbial quality standards for agricultural water, as it can be a major source of produce contamination. The Rule establishes two sets of criteria for microbial water quality based on the presence of generic E. coli, which indicates the presence of fecal contamination.

  1. Under the Rule, no detectable generic E. coli are allowed for uses of agricultural water where there is a risk that microbes could be transferred to produce through direct or indirect contact. This includes water used for washing hands during and after harvest, water used on food contact surfaces, water that comes in direct contact with produce during or after harvest, and water used for sprout irrigation.
  2. The second standard sets numerical criteria for agricultural water that is applied directly to growing produce, other than sprouts. The criteria are based on two values-the geometric mean (“GM”) and the statistical threshold (“STV”). The GM essentially represents the average amount of generic E. coli levels in a water source. The STV reflects the amount of variability in the water quality, indicating E. coli levels when adverse conditions come into play, like rainfall or a high water levels that wash waste into rivers and canals.

In response to this rule, the FDA received a significant amount of feedback from the agricultural industry pointing out that these standards are too complicated and too difficult for regulated parties to understand, translate, and implement. As a result, the FDA plans to work closely with the agricultural industry to explore the possibility of simplifying the agricultural water standards. This process will likely take a considerable amount of time, as it will likely require a formal rulemaking since the current rule does not provide much flexibility.

Nevertheless, farmers that are subject to the Produce Safety Rule should remain mindful of the looming compliance deadlines.  While the Rule establishes a staggered timeline designed to give some farmers extra time to come into compliance, the compliance date for the agricultural water-related requirements is January 27, 2020 for large businesses, January 26, 2021 for small businesses, and January 26, 2022 for very small businesses.

Ideally, FDA’s review of the standard will be quick, so that changes to the standard and testing frequencies are made before farms are expected to come into compliance. However, it is also possible that the FDA will extend the dates for complying beyond after the initial compliance deadline in 2020.

On February 13, 2017, by an eight to six vote, the Fifth Circuit denied en banc review of the panel opinion in Markle Interests, LLC v. U.S. Fish & Wildlife Service.  The case dealt with the predecessor to the new regulations effective March 2016, but it is highly significant in determining the extent of Fish & Wildlife’s authority to designate land as critical habitat.

The case concerns the dusky gopher frog, an endangered species that now resides exclusively in Mississippi.  At one time, the frog inhabited land in St. Tammany Parish in Louisiana but has not been seen there for more than 50 years.  Nonetheless, Fish & Wildlife designated some 1500 acres of land in Louisiana as unoccupied critical habitat.

The rationale was that the Louisiana property had one essential condition for conservation of the frog:  five ephemeral ponds.  An ephemeral pond is one that periodically dries up and hence cannot support fish.  The frog uses the pond to lay its eggs safe from predatory fish.

The problem is that the Louisiana property is not currently habitable by the frog.  Approximately 90% of the property is covered with closed-canopy loblolly pine trees, which would have to be removed and replaced with another variety to make the area habitable for the frog.  Fish & Wildlife has no authority to compel private landowners to undertake these changes and there is no evidence that they will.

The opportunity cost to the landowners may be more than $30 million.  We expect a cert. petition.

The State of Missouri recently joined 19 other states (7 of which are in Husch Blackwell’s geographic footprint) in challenging recently-enacted regulations extending the scope of the Endangered Species Act (ESA). State of Alabama ex rel. Strange v. Nat’l Marine Fisheries Service, No.16-cv-00593 (S.D. Ala.).  The National Marine Fisheries Service and the Fish & Wildlife Service (the Services) published the final regulations in February 2016 and they became effective in March 2016.

The ESA requires federal agencies to assure that their actions do not result in the “destruction or adverse modification” of habitat critical to the conservation of threatened or endangered species. Thus, a federal agency may not authorize or fund activities that adversely affect critical habitat.  The new regulations change the method for designating habitat as critical and the meaning of adverse modification.

The ESA distinguishes between “occupied” and “unoccupied” habitat. For the former, the Services must establish that the site has physical or biological features that are essential to the conservation of a species and may require special management considerations or protection.  For the latter, the Services must establish that habitat limited to its current range would be inadequate to ensure conservation of the species.  The statute explicitly states that critical habitat may not include the entire geographical area that can be occupied by the species.

According to the lawsuit, the new regulations exceed the Services’ powers under the ESA in four respects. First, they permit the Services to designate unoccupied land as critical habitat, even if unnecessary to recovery of the species.  Second, they permit the Services to designate areas as occupied critical habitat, even when neither occupied nor containing features necessary to conservation of the species.  Third, they allow the Services to designate uninhabited areas as critical habitat even if incapable of supporting the species.  Fourth, they allow the Services to declare broad, general swaths of land or water as critical habitat without requiring specificity. Continue Reading States Challenge New Endangered Species Act Regulations