November 27, 2017Client Alert

Court Delays Air Emissions Reporting for Livestock Operations

On November 22, 2017, a federal court delayed a requirement that certain livestock operations report air emissions from manure on their farms. Following a week of uncertainty, the court stayed any reporting requirement for air emissions from livestock operations until at least January 22, 2018.

The federal Environmental Protection Agency (EPA) had asked the court for additional time to clarify what actions livestock operations must take to comply with air reporting obligations. The delay is also expected to allow EPA and the National Response Center (NRC) more time to prepare for thousands of reports from farms across the country. The NRC is the federal office designated to receive emission release reports under federal law.

In late October 2017, EPA released preliminary guidance intended to help farms understand how to meet air emissions reporting obligations under two federal environmental laws, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). Neither law was likely intended to cover naturally occurring releases from manure on farms.

The October 2017 guidance responded to a federal court decision from April 2017 that invalidated a 2008 EPA rule that exempted all farms from CERCLA reporting and required reports only from large Concentrated Animal Feeding Operations (CAFOs) under EPCRA.

The court’s delay may also open a window for congressional lawmakers to address these reporting obligations through corrective legislation.

EPA admitted in its preliminary guidance that there is no generally accepted methodology for estimating air emissions of substances such as ammonia and hydrogen sulfide from livestock operations. EPA acknowledged that this uncertainty would make it “challenging for farmers” to report releases at this time.

Michael Best attorneys, along with industry partners, will continue to monitor the status of any air emissions reporting requirements under CERCLA and EPCRA and will provide additional information as it becomes available.

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