CERCLA / EPCRA Reporting

This issue tracker focuses on the timeline of regulatory actions and related litigation over the reporting exemption under CERCLA and EPCRA for air emissions from farm operations. This issue tracker covers the period from 2017 to present. 

6.13.19 – The U.S. Environmental Protection Agency published in the Federal Register a final rule, titled “Amendment to Emergency Release Notification Regulations on Reporting Exemption for Air Emissions From Animal Waste at Farms; Emergency Planning and Community Right-to-Know Act.” The final rule amends the emergency release notification regulations under the EPCRA and will become effective on July 15, 2019. 

11.14.18 – The U.S. Environmental Protection Agency published in the Federal Register a proposed rule, titled “Emergency Release Notification Regulations on Reporting Exemption for Air Emissions From Animal Waste at Farms; Emergency Planning and Community Right-to-Know Act.” The agency proposed to exempt reporting for air emissions from animal waste at farms in order to maintain consistency with the regulations pursuant to CERCLA. 

8.1.18 – The U.S. Environmental Protection Agency published in the Federal Register a final rule, titled “Vacatur Response-CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal Waste at Farms; FARM Act Amendments to CERCLA Release Notification Requirements,” “removing regulatory provisions associated with the administrative reporting exemption under the CERCLA of 1980, as amended, and under the EPCRA of 1986.” These revisions implement the vacatur of the CERCLA and EPCRA administrative reporting exemption regulations ordered by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). 

5.2.18 – The D.C. Circuit issued a mandate ordering the U.S. EPA to eliminate the reporting exemption for animal waste at farms. (Waterkeeper Alliance v. EPA, D.C. Circuit, No. 09-1017)

3.23.18 – U.S. President Donald Trump signed into law the Consolidated Appropriations Act, 2018 (Omnibus Bill), which contained language exempting farms from air emission reporting requirements under the CERCLA. Specifically, under Title XI of the legislation, titled the Fair Agricultural Reporting Method (FARM) Act, “air emissions from animal waste at a farm are now exempt from CERCLA reporting requirements.”

2.1.18 – The D.C. Circuit stayed the issuance of a mandate until May 1, 2018.(Waterkeeper Alliance v. EPA, D.C. Circuit, No. 09-1017)

2.1.18 – The U.S. Environmental Protection Agency (EPA) announced that farms with animal operations formerly exempted from the reporting of certain amounts of hazardous substances released in the air will not have to report until May 1, 2018.

1.19.18 – U.S. EPA filed a motion for an additional stay of the issuance of the mandate “for three months from the date of a stay order, or until April 23, 2018, whichever is later.” U.S. EPA explained, among other things, that another stay will give EPA time to revise its guidance to be more effective at assisting farms in coming into compliance and to conduct outreach to farms without internet access that may not be aware of the reporting requirements and guidance.” (Waterkeeper Alliance v. EPA, D.C. Circuit, No. 09-1017)

11.22.17 – The D.C. Circuit stayed the issuance of the mandate until January 22, 2018. (Waterkeeper Alliance v. EPA, D.C. Circuit, No. 09-1017)

10.30.17 – U.S. EPA filed a motion for an additional stay of the issuance of the mandate “for two months from the date of a stay order, or until January 17, 2018, whichever is later.” U.S. EPA explained that it needs additional time to complete the guidance. (Waterkeeper Alliance v. EPA, D.C. Circuit, No. 09-1017)

10.26.17 – The U.S. Environmental Protection Agency (EPA) announced the release of guidance to farmers on reporting air emissions of hazardous substances from their animal operations and stated: “EPA is making this information available to provide time for farmers to review and prepare for the reporting deadline, currently set for November 15, 2017” 

8.16.17 – The D.C. Circuit stayed the issuance of the mandate through November 14, 2017. (Waterkeeper Alliance v. EPA, D.C. Circuit, No. 09-1017)

7.17.17 – U.S. EPA filed a motion to stay issuance of mandate “for six months from the date of a stay order, or until January 17, 2018, whichever is later.” U.S. EPA explained that such stay is necessary in order to develop guidance to farmers on how to measure and report hazardous substances from animal operations into the air.

4.11.17 – The D.C. Circuit issued a judgment with opinion vacating the reporting exemption for air emissions of hazardous substances from animal waste farms under the CERCLA and EPCRA. The Court found that the benefits of the reporting requirements are undeniable but may be outweighed by the costs of reporting. 

1.15.09 – The Waterkeeper Alliance, along with four environmental groups, filed a Petition for Review of EPA’s Final Rule exempting air releases from animal waste at farms from reporting requirements under CERCLA and EPCRA. 

Note: Between the end of 2008 and 2017, very little happened on the regulatory side due to litigation.

12.18.08 – The U.S. Environmental Protection Agency published in the Federal Register a final rule, titled “CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal Waste at Farms,” providing an exemption from reporting requirements under the CERCLA and EPCRA for releases of hazardous substances from animal waste at farms into the air. 

12.28.07 – The U.S. Environmental Protection Agency published in the Federal Register a proposed rule, titled “CERCLA / EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste,” allowing for an exemption from reporting requirements under the CERCLA and EPCRA that would apply to “releases of hazardous substances to the air where the source of those hazardous substances is animal waste at farms.”