EPA Proposes to Clarify EPCRA Release Reporting Exemption for Animal Farms

Michael Best Law Firm

On October 30, 2018, EPA proposed to amend the emergency release notification regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA) to exempt air emissions from animal waste from federal reporting requirements.

This amendment would clarify that livestock farms are exempt from the release reporting requirements of EPCRA for air emissions from animal waste. To delineate the scope of this exemption, EPA is also proposing to amend the definition section of the EPCRA regulations at 40 CFR 355.61 to add definitions of “farm” and “animal waste” that are consistent with the release notification regulations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The proposed amendment is the most recent in a series of EPA efforts to clarify the emergency release reporting obligations of livestock farms under EPCRA and CERCLA, two federal environmental laws. In March 2018, Congress enacted the Fair Agricultural Reporting Method (FARM) Act to explicitly exempt “air emissions from animal waste at a farm” from reporting under CERCLA. EPA subsequently revised the CERCLA release notification regulations to incorporate the FARM Act’s amendments in a final rule issued in August.

With this new amendment, EPA is proposing to explicitly exempt air emissions from animal waste at farms from reporting under EPCRA. Under EPCRA’s release notification requirements, release of a hazardous substance subject to reporting under EPCRA (but not CERCLA) need only be reported if the release: (1) is not a federally permitted release as defined by CERCLA; (2) is in an amount in excess of the reportable quantity as determined by EPA; and (3) occurs in a manner that would require notification under CERCLA section 103(a). Air emissions from animal waste at farms could meet the first two criteria because such releases are generally not federally permitted and may exceed the applicable reportable quantity. However, EPA takes the position that these types of releases do not “occur in a manner” that would require notification under CERCLA section 103(a) and thus do not meet the third criterion.

This position is consistent with previous EPA guidance released in April 2018, where the Agency stated that it interprets EPCRA to exclude farms that only use substances in “routine agricultural operations” from reporting under EPCRA section 304. The Agency also interprets EPCRA’s reporting provisions to require consistency between the EPCRA and CERCLA release notification requirements.

The proposed rule is limited to air emissions from animal waste (including decomposing animal waste) at a farm, and would not apply to releases of substances from animal waste into water, nor to releases into the air from sources such as ammonia storage tanks. In other words, EPA is not proposing to exempt specific substances typically associated with animal waste (such as ammonia or hydrogen sulfide) from reporting. Rather, this proposal would codify EPA’s interpretation that air emissions from animal waste at farms are not subject to EPCRA section 304 release reporting.

If implemented, this proposal could mean that livestock farms will be spared from all air emissions reporting requirements pertaining to animal waste. Practically speaking, this could also mean that livestock farms will not need to report routine agricultural operations involving animal waste to state and local emergency response agencies. The proposed rule will be subject to a 30-day public comment period once it is published in the Federal Register.

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