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12.17.2018 Farm Animal Waste Emissions May Finally Breeze Past EPCRA Reporting Requirements By: Jessica J.O. King

Update to May 2017 Environmental Notes article “D.C. CIRCUIT STRIKES DOWN CERCLA REPORTING EXEMPTIONS FOR FEEDING OPERATIONS”

EPA has proposed a new regulation (“Proposed Rule”) exempting emissions from farm animal wastes from the emergency notification and reporting requirements in the Emergency Planning and Community Right-to-Know Act (“EPCRA”).  The proposed rule is what EPA hopes to be the final move in the chess game caused by multiple court decisions on the issue.  So, what do continuous emissions from animal waste have to do with emergency planning?  That’s the million-dollar question raised by owners of animal feeding operations.

EPCRA was passed in 1986 in response to an accidental chemical release in Bhopal, India that injured or killed thousands of citizens and responders.  The act requires immediate reporting of releases of hazardous substances to local and state officials.  This reporting requirement is in addition to the reporting requirements under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) that requires immediate notification to the National Response Center when there is a release of a reportable quantity of a “hazardous substance” (as that term is defined in CERCLA).

The United States Court of Appeals for the District of Columbia Circuit has been wrestling with the relationship of these CERCLA and EPCRA reporting requirements in the context of emissions from farm animal wastes for the last decade.  This is because EPCRA and CERCLA reporting, while separate requirements, are sometimes intertwined.  Specifically, EPCRA requires reporting under three possible scenarios:

  1. Release of an EPCRA “emergency hazardous chemical” (“EHS” as defined in EPCRA) where notification is required under CERCLA;
  2. Release of an EHS where notification is not required under CERCLA if the following three requirements are met:
    • The release is not a federally permitted release;
    • The release is in excess of the reportable quantity; and
    • The release occurs in a manner that would require notification under Section 103(a) of CERCLA.
  3. The substance is not an EHS but the release occurs from a facility that produces, uses, or stores a hazardous chemical and the release requires notification under Section 103(a) of CERCLA. 

In 2008, EPA published a final rule completely exempting reporting of hydrogen sulfide and ammonia from farm animal emissions to the air under CERCLA and, as to EPCRA, exempting reporting for smaller farms with fewer animals than a large concentrated animal feeding operation (CAFO) with more than 1000 animal units.  Not surprisingly, environmental groups and livestock trade associations appealed the 2008 final rule, and, in April 2017, the D.C. Circuit vacated it, ruling that EPA lacked authority to exempt farms from the CERCLA and EPCRA reporting requirements.

Having lost the court fight, the livestock industry took the battle to Capitol Hill.  In March of 2018, the Fair Agricultural Reporting Method Act (“FARM Act”) was passed.  The FARM Act exempts the reporting of air emissions from animal waste under CERCLA.  In the summer of 2018, EPA issued a direct final rule addressing the D.C. Circuit court decision as well, removing the EPCRA language from the rule and codifying the FARM Act exemption under CERCLA.  But EPA wasn’t finished.  To its credit, EPA does not want regulated parties and first responders to lose sight of the purpose of EPCRA reporting – to assist localities and communities in safely responding to unexpected releases of hazardous substances.  EPA concluded that air emissions from animal waste at farms is not an unexpected release for which an emergency responder needs to receive notice.

EPA is fixing the issue caused by the 2017 D.C. Circuit decision by issuing its Proposed Rule.  The Proposed Rule amends EPCRA regulations by adding a reporting exemption for air emissions from animal waste.  EPA justifies the exemption by arguing that emissions from farm animal waste are “continuous emissions,” which are statutorily exempted from EPCRA emergency notification requirements because the releases are not occurring “in a manner that would require notification under Section 103(a) of CERCLA.” 

The comment period on the Proposed Rule ends on December 14, 2018.  We’ll keep you advised.

83 Fed. Reg. 56792 (Nov. 14, 2018); EPA Docket ID No. EPA-HQ-OLEM-2018-0318; 40 CFR 355.61