The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Emergency Planning and Community Right to Know Act (EPCRA) require facilities to report releases of hazardous substances that are equal to or greater than their reportable quantities (RQ) within any 24-hour period. Following a hazardous substance reportable release, a facility owner or operator must notify federal authorities under CERCLA and state and local authorities under EPCRA.

On December 18, 2008, EPA published a final rule that exempted most farms from certain release reporting requirements in CERCLA and EPCRA. Specifically, the rule exempted farms releasing hazardous substances from animal waste to the air above threshold levels from reporting under CERCLA. For EPCRA reporting, the rule exempted reporting of such releases if the farm had fewer animals than a large concentrated animal feeding operation (CAFO).

In short, all farms were relieved from reporting hazardous substance air releases from animal waste under CERCLA, and only large CAFOs were subject to EPCRA reporting.

A number of citizen groups challenged the validity of the final rule in the U.S. Court of Appeals for the District of Columbia Circuit. On April 11, 2017, the Court struck down the final rule, eliminating the reporting exemptions for farms. EPA sought additional time from the Court to delay the effective date so that EPA could develop guidance materials to help farmers understand their reporting obligations.

On November 22, 2017, the DC Circuit Court of Appeals granted EPA’s motion to further stay the mandate until January 22, 2018.

According to the EPA website, “Farms with continuous releases do not have to submit their initial continuous release notification until the DC Circuit Court of Appeals issues its order, or mandate, enforcing the Court’s opinion of April 11, 2017.  The court is expected to issue the mandate on January 22, 2018. No reporting is necessary until the mandate is issued.”