[00:00:01] Speaker 00:
Case number 09-1017 at L, Waterkeeper Alliance at L, Petitioners vs. Environmental Protection Agency.

[00:00:08] Speaker 00:
Mr. Chung for Petitioners, National Pork Producers Council at L. Mr. Smith for Petitioners, Waterkeeper Alliance at L. Ms.

[00:00:16] Speaker 00:
Zoelly for Respondent EPA and Mr. Skinner Thompson also for Respondent EPA.

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May it please the court, my name is Jonathan Smith with Earth's Justice for Environmental Petitioners and Environmental Interveners.

[00:01:11] Speaker 04:
I'd like to make four points today.

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First, EPA's rule is in direct conflict with the struggle in APRA.

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Second, the rule undermines the public health purpose of these statutes.

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Third, the rule irrationally treats different facilities differently even though they emit the same toxic substance.

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And fourth, my clients have standing because this rule increases their risk of harm to their health and to the enjoyment of their property.

[00:01:33] Speaker 03:
Okay, so can you start with standing?

[00:01:35] Speaker 04:
Yes, Your Honor.

[00:01:37] Speaker 04:
So my clients suffer nausea, burning airways, decreased lung capacity, and other ailments.

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And these are all symptoms associated with exposure to ammonia and hydrogen sulfide, which can come from these industrial livestock facilities.

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When fumes are bad, my clients run indoors.

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They can no longer hold parties outside on their property.

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For example, Jason Chan says his daughter doesn't want to live on their property anymore because the fumes and odors are so bad.

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But without reporting.

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Your argument is that there are health effects, but I thought that your standing under Circular was based on informational standing.

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Petitioners here have two bases for standing.

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Petitioners have standing based on health effects and an additional basis for standing for informational standing.

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But without reporting from these facilities, knife conditioners face an increased risk of harm to their health and the joining of their property.

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As EPA has recognized in the record at J57 and as studies have shown, such as the study cited in the declaration of Bebel-Roos, there's a clear connection between reporting emissions and reduced emissions.

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So facilities that have to report have incentives to reduce their emissions.

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So without this reporting requirement, my clients face an increased risk of these increased emissions and an increased risk of harm to their health and enjoyment of their property.

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And in addition, without the information in these reports, my clients can't take action to protect their health.

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They can't avoid the highest emitting facilities, and they can't try to work with these facilities to try to reduce emissions from the dirtiest facilities.

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And your claim on the information, let's say your link claim causally, turns on FOIA

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on the one hand, and the practice of EPA on the other.

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Is that roughly correct?

[00:03:22] Speaker 04:
That's partially correct, Your Honor.

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These circular reports actually go to the Coast Guard's National Response Center.

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It's not the EPA that receives these reports in the first instance.

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Then the Coast Guard's National Response Center conveys these reports to any other federal agency or state government agencies, for that matter.

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And it is the Coast Guard's National Response Center that makes these reports available to the public on its website for easy access and in one location.

[00:03:46] Speaker 07:
And is that enough, the website, if they're just doing it as a discretionary matter?

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Putting it on the website?

[00:03:54] Speaker 04:
Yes, they're doing it.

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Because they feel that this is critical to the comprehensive regulatory system created by these statutes, including CERCLA, where public access to these reports is implicit in the regulatory scheme of CERCLA.

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Can I just ask this question?

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Because there seems to be an association between EPGRA and CERCLA in that if there's a report that's required to be submitted under CERCLA, it then becomes something that's required to – something has to happen with it under EPGRA, too.

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Yes, that's correct, Your Honor.

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EPGRA requires that if a particular release requires a report under CERCLA, then that release also requires a report to state and local agencies under EPGRA.

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And if it requires a release to state and local agencies under EPGRA, is that public?

[00:04:39] Speaker 04:
Well, the statute does require that those reports, so there's a phone call first and then within 30 days the facility has to do a follow-up report, and those follow-up reports are to be made public, but the fact of the matter is those follow-up reports aren't easily accessible.

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My clients would have to submit numerous public records requests with state and local agencies in order to obtain those reports.

[00:04:58] Speaker 07:
No, actually, I think this is actually maybe a point in your favor, which is what I'm trying to understand is

[00:05:04] Speaker 07:
Even if the circular report isn't itself public, I get that this Coast Guard apparently is making it public, but even if it doesn't require to do that, the question is, if it nonetheless has to be made public under EPGRA, then it would suggest that as a matter of informational standing, you may be

[00:05:22] Speaker 07:
you may have an advantage because the publication may come from EPGRA rather than CERCLA, but if the report has to be submitted under CERCLA and then the consequence that begets is it becomes public under EPGRA, then you gain an advantage from requiring that the report be submitted under CERCLA because of the publication under EPGRA.

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Yes, these reports are essentially the same whether they're reported under CERCLA or EPGRA, and EPGRA does require that these reports be made public.

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EPGRA does require that, okay.

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Yes.

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And to get back to the merits, if I may.

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This is a quintessential Chevron step-based, Your Honors.

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The text of the statute is clear that any facility must report any release of a hazardous substance into the air.

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And industrial livestock facilities are no different.

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Nothing in the statute allows EPA to create the exemption it created here.

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And Congress knows how to create exemptions when it wants to, and it simply didn't do that here.

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EPA admits this at J-614.

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Is your argument fundamentally that our decision in Alabama power now, you know, like 40 years old goes wrong?

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creating a deminimis section.

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Your Honor, I'd first point out that EPA in the rulemaking did not state that it was creating a deminimis section.

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It's true.

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It never invokes the word deminimis.

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And it certainly never cites alabama power.

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On the other hand, the language that it does use, which may be erroneous, the language that it does use fits pretty closely into

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That is to say, a requirement which is burdensome and fruitless.

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That's their argument.

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I think you pointed to a number of facts which make that questionable as a matter of fact, but that's their theory.

[00:07:12] Speaker 04:
Yes, Your Honor, but there's nothing de minimis about these releases.

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By EPA's own estimate, three-quarters come from these facilities.

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Although, we cannot say that under the terms adopted by EPA, it does look as if it met de minimis standards in the sense of being costly.

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I know you hate to handle it hypothetical in your regard as a contrary fact, but we do that all the time to explore the scope of the statute.

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So returning to the statute, Your Honor, there's nothing in the statute that would allow it.

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Which would be true now, apparently.

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Nevertheless, Your Honor, the statute already has a de minimis exception sort of baked into the regulatory structure.

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Well, that leads to another question.

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As I understand it, EPA has chosen to

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identify reportable quantities consistently across most possible variations that you might think of for any particular substance.

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But as far as I can make out that was EPA's choice, and it might have made a different choice.

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In fact, it hints here at how the source of these emissions is such that it claims nothing could be done about it.

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And that's one of the elements of pointlessness, which is not true for all kinds of other sources.

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Or so it would have us believe.

[00:09:05] Speaker 04:
Well, Your Honor, nothing in... Well, to return to CERCLA, Your Honor, CERCLA allows EPA to set different reportable quantities based on the medium into which a release is made.

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So, for example, a release into water could have a different reportable quantity versus a release into air.

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There's nothing in CERCLA that suggests that EPA can create a different reportable quantity based on the source of a release.

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And further, I'd also... I suppose it's true that there are certain sources of which

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at least below a certain level, emissions coming from them are completely unremediable.

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In that situation, then perhaps a possible de minimis exception would apply, but that's not the situation we have here.

[00:09:56] Speaker 08:
I understand.

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So all I'm suggesting is what you're arguing, I think, in practice is the factual basis for a de minimis exception does not exist.

[00:10:14] Speaker 04:
Well, by the very existence of these hazardous substances, EPA has already determined that these substances are hazardous, and by the setting of the reportable quantity, EPA has already determined that there's some quantity at which, above which, there's a cause for concern for these substances.

[00:10:31] Speaker 08:
I think it depends how you can refine that further.

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That it's a substance which is hazardous at particular volumes, but maybe that's not inconsistent with the special circumstances which make reports pointless.

[00:10:52] Speaker 08:
Which you argue, and I understand, are not present here.

[00:10:59] Speaker 04:
Again, Your Honor, the mere likelihood of an emergency response is not the only purpose of these statutes.

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So it's impermissible under the statute to say that a reporting is pointless just because an emergency response is unlikely, especially when the statute expressly allows.

[00:11:19] Speaker 08:
What if there were no response, which would possibly do any good?

[00:11:29] Speaker 04:
Well, given the statutory structure, it envisions that it's not merely emergency responses that's the only remedial action or the only purpose of these reports.

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It's the mere fact that there's a one, like no quote unquote emergency response is likely or possible for a specific release does not appropriate the need to report.

[00:11:53] Speaker 08:
There might be other things.

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which justify it, despite the absence of any possible emergency response, but which were absent in the case of these emissions.

[00:12:06] Speaker 07:
Well, couldn't you envision a scenario?

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I mean, I guess the question is, is there a gap between a hypothetical de minimis exception that would work and the possibility that this involves a real de minimis exception in the following sense.

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If a finding were made that said that from certain sources,

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emissions of this level just don't present a danger.

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They just don't.

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And the same level of emissions from a different source does present a danger.

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Now, I can't hypothesize why that would be the case, but let's just suppose that's the case, that the nature of the source of the emission affects the degree of danger.

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then it could be that you would have a de minimis exception even though the degree of emissions was the same because by hypothesis it coming from certain sources would be viewed as de minimis.

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So again, Your Honor, that is a possibility, but that's not the case that we have here.

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And EPA in this rulemaking specifically says in the response to comments at J622 that this rulemaking was not based on health or risk.

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EPA made no such assessment that these emissions were in fact de minimis in the sense that they would not cause harm to humans or to others.

[00:13:15] Speaker 07:
Right, so they disclaim health or risk.

[00:13:18] Speaker 07:
Yes.

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Now what if they say,

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Health at risk is the same, but for some sources, it's just incredibly costly to respond.

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For other sources, it's not that costly.

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And so we're going to train our resources on the ones for which we can give a more efficient response.

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And it's de minimis in that sense that it's just not worth it to respond.

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to the same level for some sources because the costs are prohibitive, whereas we can more efficiently expend our resources and achieve the same environmental advantages by rooting out the emissions elsewhere.

[00:13:51] Speaker 04:
Again, Your Honor, that is a possibility, but that's not the case we have here where no other federal agency or, in fact, the National Association of State and Local Agencies said that they were opposed to the extension because they wanted these reports.

[00:14:06] Speaker 04:
And I also note that the record does include numerous actions that these facilities can take to reduce their emissions.

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They can change livestock diet.

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They can change their manure handling and storage practices.

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So it's improper.

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It actually would be productive to get the reports, in other words.

[00:14:22] Speaker 04:
Yeah.

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These emissions are not remediable.

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I think there are no further questions.

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May it please the Court, David Chung on behalf of National Pork Producers Council and the U.S.

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Poultry and Ag Association.

[00:14:51] Speaker 05:
EPA found, and the record supports its finding, that it is unlikely there will ever be an emergency response to notifications about hazardous substances released into the air from animal waste at farms of all sizes.

[00:15:04] Speaker 05:
Given that EPA has long recognized that the purpose of EPCA Section 304 notifications is to enable emergency responses, it was arbitrary and capricious for EPA to require notifications from larger farms merely because some people want that information.

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By doing so, EPA relied on a factor that Congress did not intend for it to consider.

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The record in this case is clear.

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No one has indicated they would likely take an emergency response to the type of notifications at issue here.

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At the federal level, EPA said that it cannot remember an instance where it undertook an emergency response action and that it cannot foresee ever doing so in the future.

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Numerous state and local emergency response agencies likewise said that they have not and would not initiate an emergency response action.

[00:15:52] Speaker 05:
They explained that they simply have no use for the information that would be in these notifications.

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They generally know where the forms.

[00:15:58] Speaker 08:
That's some of the submissions, but it's not all of the submissions in the EPA.

[00:16:04] Speaker 08:
Some of the submissions, the National Association of Sierra Title III, for example, shows great interest in having these reports submitted, having access to them.

[00:16:19] Speaker 05:
Judge Williams, you're correct that that association expressed an interest in receiving the information, but they never once indicated that they would likely undertake an emergency response.

[00:16:28] Speaker 05:
In terms of the substance of the comments, they provided one example as to why the reporting exemption might harm the integrity of the response programs, and that was the example of the 911 call that comes in the middle of the night that prompts the emergency responder to drive around blindly.

[00:16:44] Speaker 05:
But number one, that example just proves the point that had they received an immediate notification, they implied that they would not drive around and undertake a response.

[00:16:54] Speaker 08:
On top of that, the example... Why that?

[00:16:58] Speaker 05:
Because they indicate the reporting is important because if they had an immediate notification, then they would know that there was no purpose in getting in their car and driving around and trying to figure out the source.

[00:17:08] Speaker 05:
The implication is that they would know what the source is.

[00:17:11] Speaker 08:
If they had a notification, they'd know where to go.

[00:17:14] Speaker 05:
No, they specifically say EPA says there would not be an emergency response, and then the comment letter goes on to say that's only in the case if we knew it was coming from a farm.

[00:17:23] Speaker 05:
On top of that, it's a purely hypothetical example.

[00:17:26] Speaker 05:
The association that theoretically represents every state and local emergency response agency nationwide doesn't give any concrete evidence that this scenario has actually occurred.

[00:17:36] Speaker 05:
On top of that, it rests on a false premise.

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They imply that if they had an immediate notification of the farm, they would know what to do.

[00:17:43] Speaker 05:
But the evidence in this case, including even Waterkeeper's admission in the reply brief, shows that

[00:17:50] Speaker 05:
the agencies will not be receiving immediate notifications because these farms would qualify for reduced reporting obligations under the continuous release reporting provisions.

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So under any scenario, they're not going to have immediate notices.

[00:18:02] Speaker 05:
And then finally, the example just doesn't make sense.

[00:18:05] Speaker 05:
There's no way to be certain that what a 911 caller is complaining about is necessarily the same release incident that you might receive from a contemporaneous notification.

[00:18:15] Speaker 05:
It's not as if only one possible release can occur at any point in time.

[00:18:20] Speaker 05:
Returning to what the state and local agencies emphasized about the uselessness of these reports, they indicated that emissions estimates are not accurate because there's no current methodology that can reliably estimate these emissions.

[00:18:31] Speaker 05:
On top of that, they generally know where the farms are and that often farms can smell.

[00:18:36] Speaker 05:
But more importantly, they expressed concern that receiving notifications about air releases from animal waste at farms could actually hurt their reporting programs by diverting resources away from potentially serious emergencies.

[00:18:50] Speaker 05:
That's a concern that this Court found compelling in the Fertilizer Institute VEPA decision.

[00:18:55] Speaker 05:
which is why it left a comparable reporting exemption in place during a remand for the EPA to address a procedural issue.

[00:19:02] Speaker 07:
Why isn't it as serious if you have the same level of emissions for the same substance?

[00:19:08] Speaker 07:
I get that one of them is coming from a farm, and by hypothesis, one of them is coming from a plant.

[00:19:12] Speaker 07:
But just why isn't it?

[00:19:13] Speaker 07:
Why is it not as serious?

[00:19:17] Speaker 05:
What's serious is whether it warrants an emergency response.

[00:19:21] Speaker 05:
The finding with respect to larger farms is, regardless of what the level of emissions may be, there is no reasonable approach for an emergency response.

[00:19:31] Speaker 05:
Council for Waterkeeper indicated that there are things that farms can do to reduce emissions, but reducing emissions is not the purpose of these emergency notification provisions.

[00:19:40] Speaker 05:
What these emergency notification provisions are designed to do is to give immediate notice to the emergency responders so they can make a timely decision on whether to respond.

[00:19:49] Speaker 05:
If, in the long run, there are certain measures that may be taken to reduce emissions, that doesn't answer the question of whether they can immediately undertake a response action and whether there's anything that can feasibly be done at the time of the release.

[00:20:04] Speaker 05:
EPA's finding that it is unlikely there will ever be an emergency response to the type of notifications at issue in this case is controlling, because it amounts to a finding that such notifications do not serve the purpose of EPCRA Section 304 notifications.

[00:20:18] Speaker 05:
EPA has long recognized that the purpose is to facilitate emergency responses.

[00:20:23] Speaker 05:
In the 1998 rulemaking on exemptions for radionuclide releases, EPA directly refuted the notion that EPGRA Section 304 was intended to inform the public.

[00:20:35] Speaker 05:
EPA explained that the purpose of reporting under EPGRA and CERCLA

[00:20:42] Speaker 05:
is to enable emergency responses, it did not mince words when it said, quote, those reporting programs are not intended to serve as a source of information for the public at Joint Appendix 125.

[00:20:54] Speaker 05:
Even in this rulemaking, in response to comments, at Joint Appendix 624, EPA said, quote, EFGRA Section 304 notifications were not intended to be used to track emissions, end quote.

[00:21:08] Speaker 05:
And in response to a comment that Congress intended for the public to know about these sorts of releases, EPA stated at Joint Appendix 619 that the intent of EPGRA Section 304 notifications is to enable emergency responses.

[00:21:22] Speaker 05:
It said nothing in response to that comment about providing information to the public, much less that the statute clearly reflected any sort of purpose about informing the public.

[00:21:32] Speaker 05:
With respect to the issues raised in Waterkeeper's petition about EPA's authority to establish reporting exemptions, to Judge Williams' point about the de minimis doctrine, we agree that that is functionally the equivalent of what EPA did in this case.

[00:21:47] Speaker 05:
This court has long held that the literal meaning of a statute need not be followed if following the precise terms would lead to absurd results or if the failure to allow a de minimis exemption would be contrary to the primary legislative goal.

[00:22:01] Speaker 05:
Whether something is a de minimis deviation from the statute has to be judged in terms of what the purpose of the underlying statutory requirement is.

[00:22:10] Speaker 05:
Waterkeeper is incorrect that this does not qualify for a de minimis exemption merely because

[00:22:17] Speaker 05:
the extent to which some of these releases might exceed the reportable quantity that's set forth in a regulation.

[00:22:24] Speaker 05:
The proper way to apply this doctrine is to ask whether excusing one narrow type of release, i.e.

[00:22:31] Speaker 05:
air releases, from one specific type of source, i.e.

[00:22:35] Speaker 05:
animal, manure, urine, or flatulence, from one specific type of facility, i.e.

[00:22:41] Speaker 05:
farms,

[00:22:42] Speaker 05:
is a de minimis deviation from the broader general requirement that facilities report releases under CERCLA or EPGRA.

[00:22:52] Speaker 05:
Farms still have to report air releases from other sources, such as if an ammonium tank explodes.

[00:22:58] Speaker 05:
Farms still have to report releases about animal waste into the groundwater, for example, or surface water.

[00:23:05] Speaker 05:
And other facilities that may have air releases from animal waste

[00:23:09] Speaker 05:
still have to report.

[00:23:11] Speaker 05:
So in sum, the de minimis exemption, although EPA did not specifically reference it or cite Alabama power, certainly applies here as our intervener brief explains.

[00:23:22] Speaker 05:
Thank you.

[00:23:34] Speaker 06:
Good morning, may it please the Court.

[00:23:35] Speaker 06:
My name is Jonathan Skinner-Thompson on behalf of the U.S.

[00:23:38] Speaker 06:
Environmental Protection Agency, and with me at Council's table are Ms.

[00:23:41] Speaker 06:
Erica Zillioli with the Department of Justice and Mr. Eric Swensen with EPA's Office of General Counsel.

[00:23:47] Speaker 06:
I plan to use the first five minutes this morning to address standing and jurisdiction, and my colleague Ms.

[00:23:51] Speaker 06:
Zillioli will use her remaining time to address the merits.

[00:23:54] Speaker 06:
Now, I'd like to focus on Waterkeeper's two theories of standing and make three points.

[00:23:58] Speaker 06:
First, Waterkeeper fails to establish any informational injury under section 103 of CERCLA and even concede on page three of their reply brief that CERCLA does not require that release reports be conveyed directly to the public.

[00:24:13] Speaker 06:
That concession can't be squared with federal entertainment, which requires claimants to espouse a reading of the statute that provides them a direct entitlement to the information they seek.

[00:24:24] Speaker 06:
Waterkeeper can't do so here because section... That was a pretty good information for a private entity, right?

[00:24:31] Speaker 08:
That's correct.

[00:24:32] Speaker 08:
Yeah.

[00:24:34] Speaker 08:
This is different.

[00:24:35] Speaker 06:
Well, I think what that case essentially held, and when it read Akins as well, is that they need to produce some interpretation of the statute which provides them with the direct legal entitlement.

[00:24:46] Speaker 06:
And there is no legal entitlement under section 103.

[00:24:49] Speaker 06:
The plain text, I think... Yeah.

[00:24:51] Speaker 08:
Even in our most restrictive standing cases, if there's a high probability that the conduct a person is suing against is causing the harm, that's enough.

[00:25:11] Speaker 06:
I think that's actually more appropriate.

[00:25:13] Speaker 06:
There are two requirements that need to be shown, and the first threshold question is whether there's a legal requirement to receive the information.

[00:25:20] Speaker 06:
The second question is whether there's any utility in receiving that information.

[00:25:26] Speaker 08:
And I don't see why the merits need to be framed in that way.

[00:25:31] Speaker 06:
Well, I think for standing purposes in the informational standing case law, there may be no question as to whether there's any useful utility to having this information, but they still haven't established that they're required to receive the information.

[00:25:45] Speaker 08:
I'm not sure why you put that as part of the standing requirement.

[00:25:50] Speaker 08:
We're talking about Article 3, injury in fact, right?

[00:25:56] Speaker 08:
The claim is meritorious.

[00:26:00] Speaker 08:
The argument is certain consequences will flow.

[00:26:04] Speaker 08:
We'll get better if we get the information we used to get.

[00:26:08] Speaker 08:
And that's usually enough.

[00:26:11] Speaker 06:
But I think the initial question is whether they should be getting that or are required to get that information in the first place.

[00:26:17] Speaker 06:
And I think they haven't really presented a case for interpretation of statute here that would require the National Response Center or the EPA to convey those reports to the public.

[00:26:28] Speaker 07:
And I take it you don't dispute that they would get the reports.

[00:26:31] Speaker 06:
Well, I think they would have to either go online, as they've noted, or request the information through FOIA.

[00:26:38] Speaker 06:
So go online.

[00:26:39] Speaker 07:
I mean, that doesn't sound like a big obstacle.

[00:26:42] Speaker 07:
Everybody goes online every day.

[00:26:43] Speaker 06:
The fact that the National Response Center voluntarily aggregates the information, I don't think is enough here.

[00:26:50] Speaker 06:
I think they need to be able to identify

[00:26:52] Speaker 06:
a statutory interpretation that actually requires either the National Response Center to post the information or that requires the EPA to post the information, and they concede that there is no requirement under CERCLA to post the information.

[00:27:05] Speaker 06:
I think it may be good policy that the National Response Center does, but it's certainly not a legal requirement.

[00:27:12] Speaker 07:
Even if that were true, even if the fact that as a matter of fact they could get it on the web wouldn't be enough, what about EPCRA?

[00:27:19] Speaker 06:
I have one point of clarification, I think, which you asked earlier this morning, Judge Friedenhoff.

[00:27:26] Speaker 06:
Section 324 actually requires follow-up notifications to be publicly available.

[00:27:32] Speaker 06:
But the notifications that are provided under CERCLA and EPRA are the initial notifications which aren't mandated to be disclosed to the public.

[00:27:40] Speaker 06:
It's actually those under EPRA, the follow-up notifications that must be provided to the public.

[00:27:46] Speaker 06:
Well, even if that's why, isn't that enough?

[00:27:47] Speaker 07:
Well, there's no similar provision under CERCLA that requires... In other words, the CERCLA triggers a follow-up notification requirement under EPGRA.

[00:27:58] Speaker 06:
And that's also not necessarily true, because EPGRA reporting can be triggered under a variety of different circumstances.

[00:28:04] Speaker 06:
It's not just if there's a CERCLA notification... But CERCLA does do that.

[00:28:08] Speaker 07:
It may be that... If I'm following you correctly... Correct.

[00:28:12] Speaker 07:
There may be other reasons that EPCRA also has a Notificatory Department.

[00:28:15] Speaker 06:
But I don't think this court has ever found or imported a legal requirement under another statute to find information.

[00:28:23] Speaker 07:
But I'm just not understanding why wouldn't we?

[00:28:25] Speaker 07:
Because if they win under CERCLA, your argument is, well, CERCLA doesn't require any report be made public under CERCLA.

[00:28:34] Speaker 07:
And then if the response is, OK, well, CERCLA might not.

[00:28:37] Speaker 07:
But winning under CERCLA would get at least some reports public under EPCRA.

[00:28:42] Speaker 07:
If it automatically follows as a matter of course, why does it matter that formally it comes from another statute?

[00:28:46] Speaker 06:
Well, I think that the cases have been pretty clear that they actually have to identify that within that particular provision that there's a requirement.

[00:28:53] Speaker 07:
But I just don't understand.

[00:28:54] Speaker 07:
Why would we limit it to that particular provision if it just follows as a matter of law that it's going to be made public under some other statute for Article 3 purposes?

[00:29:02] Speaker 06:
I think the different reports actually that are provided, and I think maybe to go back to the Section 103 reports, these are often just telephone communications to the agency, and there's no actual written report that's provided by the third parties to the NRC.

[00:29:20] Speaker 06:
Under EPGRA, the third parties are

[00:29:22] Speaker 06:
after they've provided an initial notification required to generate a new report, these follow-up notifications, and those reports are then required to be public.

[00:29:30] Speaker 06:
But there's not a similar requirement under CERCLA to do something like that.

[00:29:35] Speaker 03:
Okay, you were going to also address their second standing argument.

[00:29:40] Speaker 06:
Sure, and so the water keeper's health base claim is also insufficient because in light of the record, there's no basis to conclude that any of the alleged physical harms would be redressable by a favorable decision.

[00:29:51] Speaker 06:
And as EPA explained in the rule that joined Appendix 6 and 5, EPA has never initiated a response action to any Section 103A notification.

[00:30:00] Speaker 08:
There is material in the record that

[00:30:02] Speaker 08:
some changes in practices of these farms would have the effect of tending to reduce the emissions?

[00:30:10] Speaker 06:
I think that that's speculative and doesn't, I think the ultimate justification that Waterkeeper puts out in their brief is that state agencies might or could take some action, but the record actually supports the opposite conclusion.

[00:30:26] Speaker 06:
EPA concluded that state and local agencies were unlikely to respond to an

[00:30:31] Speaker 06:
release notification and so they haven't actually demonstrated I think here for Article 3 purposes that there would be a likely health benefit if this court were to find that the reporting exemption rule were unlawful.

[00:31:01] Speaker 01:
Good morning and may it please the court, Erica Zolioli on behalf of the United States Environmental Protection Agency.

[00:31:08] Speaker 01:
If the court reaches the merits in this case, the reporting exemption rule should be upheld for three reasons.

[00:31:15] Speaker 01:
First, Chevron deference is appropriate here.

[00:31:18] Speaker 01:
Congress gave EPA broad discretion to implement the CERCLA and EPPA reporting requirements and left room for the agency to determine how best to carry out its authority.

[00:31:29] Speaker 01:
Thus, it is a permissible reading of the statutes for EPA to exercise its authority

[00:31:34] Speaker 01:
through implementing limited administrative reporting exemptions.

[00:31:39] Speaker 01:
Second, EPA's interpretation is consistent with the statute's primary purpose, legislative history, and the agency's own regulations.

[00:31:48] Speaker 01:
And third, this rule is reasonable because it avoids unnecessary burden on federal, state, and local agencies, as well as on covered farms, while still advancing the purposes of the statutes.

[00:32:01] Speaker 07:
Can I ask this?

[00:32:02] Speaker 07:
It looks like under the regulatory materials, the agency doesn't dispute that the same level of emissions begets the same level of harm.

[00:32:13] Speaker 07:
In other words, the agency's not saying that releases of ammonia from farms present lesser harm than releases of the same quantity of ammonia from somewhere else as to which there would be a response.

[00:32:26] Speaker 01:
I don't think EPA makes a formal finding on that fact here because the rule was not based on a finding about risk from these sorts of releases.

[00:32:35] Speaker 01:
So I don't think there's anything in the record that addresses that question.

[00:32:38] Speaker 07:
Right, so which I think, I mean, I'm reading from JS622 in the response to some comments.

[00:32:45] Speaker 07:
The exemptions, and this is EPA, the exemptions provided for

[00:32:49] Speaker 07:
CIRCLE S, Section 103, and EPCRIS, Section 304, were not based on health or risk.

[00:32:53] Speaker 07:
EPA does not disagree with the commenter that a toxin material is a toxin material and has the same health and environmental effects regardless of the source.

[00:33:00] Speaker 07:
So we take this case on the assumption that it presents the same level of risk.

[00:33:05] Speaker 07:
And if we do that, then what's the reason that there's not a response?

[00:33:12] Speaker 01:
It has to do with essentially the nature of these sorts of emissions.

[00:33:16] Speaker 01:
We're talking about essentially manure and other types of animal waste that are sitting in any number of different types of configurations.

[00:33:23] Speaker 01:
They could be in wastewater lagoons.

[00:33:25] Speaker 01:
They could be sitting on the floor of a barn.

[00:33:27] Speaker 01:
They could be spread on a field.

[00:33:30] Speaker 01:
There are a number of different ways in which the waste is present at these facilities.

[00:33:35] Speaker 01:
And so EPA has to, if they were to respond, they would have to come in and essentially, the waste is still going to be decomposing.

[00:33:44] Speaker 01:
So the idea that there are so many factors that go into how these emissions are generated,

[00:33:49] Speaker 01:
geographic, the breed of the animal, the type of feed, it would be virtually impossible and feasible for EPA to come in and make some sort of determination that any particular action could actually eliminate the cows.

[00:34:04] Speaker 07:
So if there were actions that farms could take to limit the amount of ammonia released by animal waste,

[00:34:11] Speaker 07:
Is there any reason the agency wouldn't just tell farms, you know, you ought to undertake these measures because this creates a risk.

[00:34:17] Speaker 07:
By hypothesis, it creates the same risk as the same release from some other source.

[00:34:21] Speaker 07:
And there's things that you can institute to minimize that risk.

[00:34:24] Speaker 07:
Here's what you should do.

[00:34:26] Speaker 01:
Under the idea of a response action is there's an emergency present, a threat to human health or the environment.

[00:34:33] Speaker 01:
An EPA or the local agency has some ability to come in and tell the farm to do something to reduce that risk or to eliminate the risk.

[00:34:41] Speaker 08:
Aside from basically shutting down farms, there's really no way to entirely It's unclear though that given that these are ongoing continuous releases typically that that's you know having some sort of change in the farms

[00:35:11] Speaker 01:
waste management system, could eliminate that risk.

[00:35:19] Speaker 08:
So you think even the presence of spikes way above the reportable quantity doesn't contradict the proposition that nothing can be done?

[00:35:33] Speaker 01:
It's not inconceivable that there's a scenario where a response could be appropriate.

[00:35:38] Speaker 01:
EPA just hasn't encountered one in their 30 years or so of experience with dealing with hazardous waste management.

[00:35:46] Speaker 01:
There's actually been an ongoing study to look at and try to capture

[00:35:55] Speaker 01:
how emissions are generated and how there may be an ability to calculate.

[00:36:00] Speaker 01:
Because the fundamental challenge is you're dealing again with regional differences, geographic, climate, weather, types of animals.

[00:36:07] Speaker 01:
It's really hard, given the diversity and the variety of factors, for any farm, let alone for EPA, to try to come up with a reliable method

[00:36:15] Speaker 01:
of estimating and calculating these emissions.

[00:36:19] Speaker 01:
And so there have been studies that EPA has been undergoing.

[00:36:22] Speaker 01:
In our record, there's a reference to the National Academies of Science report that EPA commissioned along with USDA.

[00:36:29] Speaker 01:
And part of the goal of that was to try to figure out if there were appropriate ways in which to

[00:36:35] Speaker 01:
estimate the amount of emissions that were coming out of farms.

[00:36:39] Speaker 01:
And the study concluded, and this is back in 2003, that there really was no reliable method of trying to capture the amount of emissions and therefore having an ability to respond.

[00:36:49] Speaker 01:
Again, unless you know how much emissions there are, it's challenging, and that's why EPA cites the infeasibility of being able to respond, because you don't know how much and what could potentially be done to correct that.

[00:37:04] Speaker 07:
So you don't deny the proposition that it can be beneficial to the community to know where there's the requisite level of emissions from a farm.

[00:37:18] Speaker 01:
No, and that's why the role has that carve out under the EPCO provisions that requires the largest farms, the CAFOs, concentrated animal feeding operations, to report to the local agencies.

[00:37:31] Speaker 01:
EPA still concluded that local response agencies are not going to respond.

[00:37:35] Speaker 01:
They're very unlikely to respond, but it made that carve out specifically to

[00:37:40] Speaker 01:
give credit to the comments from members of the public that said they were concerned about the CAFOs in their community.

[00:37:47] Speaker 01:
And so that's why EPA, in fact, under and appropriately under EPRA, considered the community's desire to have access to that information when it decided that the CAFOs are going to continue to report.

[00:37:59] Speaker 07:
And again, why is that desire not present with respect to non-CAFOs that release the same level of ammonia?

[00:38:06] Speaker 01:
Well, to some extent, it was really EPA's reaction to the record.

[00:38:09] Speaker 01:
The proposed rule would have exempted all farms from the Epco reporting requirements, and EPA received public comments that indicated that people were concerned about these large industrialized farms, and those are the farms that are most likely to have the releases that would even exceed the reportable quantity to begin with.

[00:38:27] Speaker 01:
Farms, for example, that have free-range animals,

[00:38:29] Speaker 01:
and where the animals are not confined, those types of farms aren't even covered by the rule.

[00:38:34] Speaker 01:
So most, when you think about the farms kind of out, just a few cows wandering around, those farms are not likely to reach the level of even having the report requirement in the first place.

[00:38:49] Speaker 01:
And that's why this rule.

[00:38:50] Speaker 08:
But the line between apos and kapos is considerably different from the line between free range hens.

[00:38:59] Speaker 08:
most of the athos, right?

[00:39:03] Speaker 01:
Yes, the rule specifies the number of animals that are required in order to reach that threshold.

[00:39:09] Speaker 01:
So part of the record talks about the nature of how particularly industrialized farming has become.

[00:39:18] Speaker 01:
Most farms are likely to, of the industrial and commercial nature, could very well fall into those categories.

[00:39:23] Speaker 01:
So the communities are still going to be receiving that information

[00:39:27] Speaker 01:
Even the local response agencies that Waterkeeper Alliance sites that wrote in or their associations wrote in to say we do want access to that information.

[00:39:38] Speaker 01:
They were commenting on the proposed rule, which would not have had that carve out.

[00:39:41] Speaker 01:
So now they are getting access to that information.

[00:39:44] Speaker 01:
So we think those concerns have been alleviated.

[00:39:47] Speaker 01:
And again, EPA was reasonable when it considered those public comments because the secondary purpose of the EPCA reporting requirements is to allow those second, those follow-up written reports that are more detailed, those have to be provided to the public.

[00:40:04] Speaker 01:
So we think EPA was reasonable when it considered those comments that really were focused on the largest CAFOs as opposed to the traditional AFO, smaller firms.

[00:40:15] Speaker 01:
And again, in response to concerns that have come up about the health risk and everything, EPA did not premise its rulemaking on risk of that nature.

[00:40:26] Speaker 01:
But I would point out that this rule is very narrowly targeted, and that's the reasonableness of having an administrative reporting exemption as opposed to just setting a reportable quantity at a very high level.

[00:40:38] Speaker 01:
for all releases from different facilities and from different sources is specifically to allow this to be a very narrow circumstance where EPA knows a response is not likely.

[00:40:49] Speaker 01:
EPA could have set an extremely high reportable quantity for ammonia and hydrogen sulfide, but the result of that would have been that they wouldn't have gotten the information they needed from other sources.

[00:41:01] Speaker 01:
Here, instead, they chose to call it an administrative reporting exemption, but really it's narrowly crafted for a very specific set of circumstances.

[00:41:10] Speaker 01:
And that's what makes this rule so reasonable.

[00:41:13] Speaker 01:
It does not apply to facilities other than farms.

[00:41:16] Speaker 01:
It does not apply to sources other than the natural production of these chemicals through the decomposition of waste.

[00:41:23] Speaker 01:
So if somebody does have a stack or another facility at their farm, that is releasing this in a spike

[00:41:30] Speaker 01:
that would still be required to be reported.

[00:41:33] Speaker 01:
So EPA was reasonable when it designed the reporting exemption in the way that it did.

[00:41:38] Speaker 01:
And that's why we maintain that the rule is reasonable.

[00:41:43] Speaker 01:
If there are no further questions, if the court reaches the merits, we ask that you uphold the rule in its entirety.

[00:41:48] Speaker 02:
Thank you.

[00:41:49] Speaker 02:
Thank you.

[00:41:51] Speaker 02:
Okay, so no one had any time remaining.

[00:41:55] Speaker 02:
We'll give each of you a minute.

[00:42:04] Speaker 04:
To briefly address standing, it is this Court's precedent that it's not speculative to assume that companies will act in their economic self-interest when given the opportunity to do so, and companies that have to report it is in their economic self-interest to not be seen as bad actors in the eyes of government regulators, in the eyes of their investors, or in the eyes of the public.

[00:42:23] Speaker 04:
And in addition, plaintiffs standing based on harms to their health and enjoyment of their property is not solely based on the actions of others.

[00:42:31] Speaker 04:
It is also based on part of the actions that my clients, that petitioners can take.

[00:42:36] Speaker 04:
They can avoid these high-emitting facilities as well.

[00:42:38] Speaker 04:
And I'd also note that

[00:42:40] Speaker 04:
A sample continuous release report is in the record at J534 and that continuous release report does use a calculation methodology that does exist to calculate approximately 1,000 to 2,000 pounds of ammonia emissions per day.

[00:42:52] Speaker 04:
So it's incorrect to say that no calculation tool exists for these facilities.

[00:42:57] Speaker 04:
I'll also note that these are not emergency notice provisions.

[00:43:01] Speaker 04:
The search list specifically provides for release reports in the event of continuous emissions that are stable in quantity, such as perhaps most of the emissions from these livestock facilities, and that there are actions that these facilities can take to address continuous releases.

[00:43:15] Speaker 04:
They can change livestock diet, they can change the acidity of the manure pits.

[00:43:18] Speaker 04:
These can all affect emissions that are continuous and not necessarily only those spikes that the other parties have mentioned.

[00:43:25] Speaker 04:
And I note that pork producers seem to be claiming that these emissions are de minimis because instead of 1,000 pounds of emissions one day a year, these facilities emit 1,000 pounds every single day.

[00:43:38] Speaker 04:
And we posit that that is not what the de minimis exception applies to.

[00:43:44] Speaker 04:
And finally, there are a number of purposes as recognized by EPA to this reporting even aside from a emergency response.

[00:43:54] Speaker 04:
In addition to EPA's connection between reduced emissions at J57, EPA has recognized that the public uses these reports at supplemental J818.

[00:44:04] Speaker 04:
On that same page, EPA recognized that state and local agencies can use these reports to create new regulations or new permitting requirements.

[00:44:10] Speaker 04:
And also these circles specifically allows that federal agencies can do other types of remedial actions such as monitoring or assessment or measures to prevent future releases and not just emergency response actions.

[00:44:24] Speaker 04:
Thank you.

[00:44:33] Speaker 05:
Very briefly, Your Honor, the only points that I want to address are your concerns about what could be done to address the emissions from these farms.

[00:44:42] Speaker 05:
Two points.

[00:44:42] Speaker 05:
First, not every single release that exceeds a reportable quantity requires an immediate response.

[00:44:49] Speaker 05:
The purpose of these provisions, again, is to give information to the emergency responders so they can figure out whether to take a response.

[00:44:55] Speaker 05:
But that doesn't mean that every single release above a certain quantity for a certain pollutant

[00:45:01] Speaker 05:
constitutes an emergency.

[00:45:02] Speaker 05:
But more importantly, the reporting exemptions as EPA made clear don't affect its authority under other provisions of these two statutes, nor do they affect EPA's authority under various other statutes to address potential emission control measures.

[00:45:18] Speaker 05:
All this does is excuse emergency notification reports because something will not be done immediately as an emergency response.

[00:45:26] Speaker 05:
But there are ways to address emissions from farms, as EPA has done and as Waterkeeper points out in their comments, to address these emissions in the longer term.

[00:45:35] Speaker 05:
And on top of that, farms are regulated by states as well for that very purpose.

[00:45:40] Speaker 05:
Thank you.

[00:45:41] Speaker 03:
Thank you.

[00:45:42] Speaker 03:
Case will be submitted.