Michael Best and industry colleagues have been closely monitoring activity at a federal court in Washington, D.C., hoping we would gain additional clarity on air emissions reporting obligations under two federal laws. As of 1:00 p.m. CST today, November 15, no order has yet been issued by the federal court. Given this uncertainty, we are recommending farms hold off on reporting any emissions to EPA or the National Response Center at this time.
As we first noted on November 1, EPA issued guidance in late October regarding air emissions reporting obligations under two federal statutes, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the Emergency Planning and Community Right-to-Know Act (EPCRA). The guidance followed an April court ruling which invalidated a 2008 EPA exemption for all farms under CERCLA and all but large Concentrated Animal Feeding Operations (CAFOs) under EPCRA.
Under EPA’s October 2017 guidance, farms with releases above certain quantities under CERCLA would be required to make what is known as a “continuous release report” under that law, while no reporting would be required under EPCRA.
After releasing this guidance, EPA asked a federal appeals court in Washington, D.C. (the D.C. Circuit) for a stay (essentially, a delay of the court’s earlier ruling) to allow the agency more time to prepare for these reporting obligations. No ruling has yet been issued on the motion for stay, but the court has also not affirmatively issued a mandate that would have the effect of requiring reporting today. As a result, we recommend holding off on any reporting obligations until the D.C. Circuit acts.
Michael Best continues to monitor this issue closely, and we will release additional client alerts when more information becomes available. Stay tuned for these developments.