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September 07, 2017
Court gives EPA until November 14 to enforce CAFO release reporting

In order to give the EPA time to prepare guidance for farm livestock operations on how to report certain air releases of hazardous substances from animal waste, the U.S. Court of Appeals for the District of Columbia Circuit has allowed the EPA to delay until November 14 enforcement of the emergency release reporting requirements for such facilities.

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Earlier this year, the court of appeals vacated EPA’s exemption from release reporting under Section 103 of the Comprehensive Response, Compensation, and Liability Act (CERCLA) and Section 304 of the Emergency Planning and Community Right-To-Know Act (EPCRA) for those farm livestock operations that release a regulated hazardous substance in excess of its reportable quantity (RQ) (Waterkeeper Alliance, et al. v. EPA, No. 09-1017, April 11, 2017).

Both CERCLA and EPCRA require facilities to notify authorities when regulated hazardous substances, such as ammonia and hydrogen sulfide, are released in excess of a substance’s RQ.

In 2008, the EPA finalized a rule exempting farm livestock facilities from CERCLA reporting requirements for chemical releases to the air from animal waste, and exempted all livestock operations, except for concentrated animal feeding operations (CAFOs), from EPCRA reporting requirements (December 18, 2008, FR).

In response, several environmental groups challenged the rule by asserting that the EPA exceeded its authority to create exemptions to the statutory reporting requirements under CERCLA and EPCRA.

Following the court’s decision to vacate the exemption, the EPA, with support from the National Pork Producers Council and the USA Poultry & Egg Association, filed a motion July 17 with the court asking for a delay in the mandate to enforce the release reporting requirements.

In its motion, the EPA argued that it needed more time “to develop guidance on estimating aerial emissions, which will help avoid disruption and ease the transition to compliance for existing facilities, and assist new and future farms.” According to the motion, the agency will work to finalize emissions estimating methodology for farm livestock operations, and is interested in exploring regulatory and administrative approaches to limit the reporting burden.

Opposing EPA’s motion, several environmental groups asserted that CAFOs “have been reporting releases without any guidance for over a decade. And EPA has been collecting and analyzing emissions data, similarly for over a decade, for the purpose of developing guidance—but guidance still has not [been] issued.”

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