The D.C. Circuit Court of Appeals granted on November 22 the Environmental Protection Agency’s motion to stay a mandate on reporting hazardous substances, delaying the reporting requirement until January 22, 2018.  No reporting is required until the D.C. Circuit Court of Appeals issues its order, or mandate, enforcing the court’s opinion of April 11, 2017. The court has not yet done this.

In late 2008, EPA published a final rule that exempted most farms from certain reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act, known as CERCLA, and the Emergency Planning and Community Right to Know Act, known as EPCRA. Specifically, the rule exempted farms releasing hazardous substances from animal waste to the air above threshold levels from reporting under CERCLA and exempted reporting of such releases if the farm had fewer animals than a large concentrated animal feeding operation under EPCRA. These laws established so-called “Superfund sites.”

A number of citizen groups challenged the validity of the final rule in the U.S. Court of Appeals for the D.C. Circuit. On April 11, 2017, the court struck down the final rule, eliminating the exemptions. EPA then sought additional time from the court to delay the effective date so EPA could develop guidance materials to help farmers understand their reporting obligations. The November 22 decision is a further 60-day delay.

Once the mandate is issued, farms should submit an initial continuous release notification to the National Response Center for qualifying releases that occur within a 24-hour period. The NRC is to be notified by email or written notification.  For other types of releases that require immediate response, reporting should be done by phone.

Hazardous substances associated with animal wastes, such as ammonia and hydrogen sulfide, should be reported. Both ammonia and hydrogen sulfide have a reportable quantity of 100 lbs. A complete list of reportable hazardous substances and their reportable quantities can be found here.

Farm owners and operators in compliance with their Animal Feeding Operation Air Compliance Agreement are not expected to report air releases of hazardous substances from animal wastes under CERCLA and EPCRA. Per their agreement, participants must report air releases of hazardous substances equal to or exceeding the hazardous substances’ reportable quantities under CERCLA when EPA completes the National Air Emissions Monitoring Study.

Should the court issue its mandate in conjunction with the January 22, 2018 deadline on the extension, reporting will be required as of that date. If the court does not issue its mandate in conjunction with the deadline, no reporting will be required until it does so.