The EPA’s December 18, 2008 final rule exempted most farms from many reporting requirements in CERCLA and EPCRA. Exemptions were created under both EPCRA and CERCLA for emissions from animal waste for CERCLA and for smaller than CAFO-sized facilities under EPCRA.
Waterkeeper Alliance and a number of other citizen groups challenged the final rule in court and on April 11, 2017 the U.S. Court of Appeals for the District of Columbia Circuit struck down the rule. Waterkeepers Allilance v. EPA, 853 F.3d 527 (D.C. Cir. 2017) Barring some last-minute reprieve, the court’s ruling takes effect on November 15, 2017.
As summarized by the EPA: “Starting on this date, farms releasing hazardous substances to air from animal wastes, equal to or greater than their reportable quantities, within any 24-hour period, must notify the NRC. For farms with continuous releases, this means that the initial continuous release notification needs to be made as of the effective date of the Court action (currently November 15, 2017).”
The reason behind the exemption in the first place is that the EPA admits that “there is no generally accepted methodology for estimating emission quantities at this time.” Thus, farmers with operations of any size are in a quandary. Fail to guess correctly and they can be subject to massive fines, penalties and possible imprisonment. The EPA suggests that “farmers may need to report their releases in broad ranges that reflect the high degree of uncertainty and variability of these releases.” Of course, the point of the reports under EPCRA are to alert the local population of a potential hazard. Given the lack of any accepted methodology, the mandated reporting is likely to be fairly useless and time consuming.