By Nicole Cook
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If you raise poultry or livestock, you’ve probably been following our coverage of the litigation surrounding the EPA’s 2008 rule exempting farms from reporting air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). Following much confusion and plenty of vexation on the part of producers, in what appears to be the final word on the subject pursuant to Congress’ passage of the FARM Act, on August 1, 2018, EPA published a final rule revising the CERCLA reporting regulations. Under the rule, air emissions from animal waste at a farm are exempt from reporting under CERCLA. In addition, air emissions from animal waste at farms do not need to be reported under EPCRA.
A Brief History
CERCLA and EPCRA are environmental laws that require reporting of releases of hazardous substances that meet or exceed reportable quantities within a 24-hour period. The purpose of the notification is for federal, state, and local officials to evaluate the need for an emergency response to mitigate the effects of a release to the community. On December 18, 2008, EPA published a final rule that exempted most farms from certain release reporting requirements under CERCLA and EPCRA. Specifically, under the 2008 rule, all agricultural operations were completely exempted from CERCLA reporting requirements. For EPCRA reporting, the rule exempted reporting of such releases if the farm had fewer animals than a large concentrated animal feeding operation (CAFO). In short, all farms were relieved from reporting hazardous substance air releases from animal waste under CERCLA, and only large CAFOs were subject to EPCRA reporting.
Several citizen groups challenged the validity of the 2008 final rule in the U.S. Court of Appeals for the D.C. Circuit. After lengthy litigation, on April 11, 2017, the court vacated the 2008 final rule, and on May 2, 2018, the court issued a mandate effectuating its vacatur, thereby eliminating the CERCLA and EPCRA administrative reporting exemption for farms.
Legislative and administrative actions following the issuance of the 2017 order, however, limited the impact of the mandate. Then on March 23, 2018, President Trump signed into law the Consolidated Appropriations Act, 2018 (Omnibus Bill), which contained language exempting agricultural operations from CERCLA air emission reporting requirements (Public Law No: 115-141). Specifically, Title XI of Division S of the Omnibus Bill, known as the Fair Agricultural Reporting Method Act (FARM Act), amended CERCLA section 103(e) to exempt air emissions from animal waste at a farm from reporting under CERCLA.
Under EPCRA section 304(a)(2), releases that are not subject to reporting under CERCLA section 103 need only be reported if the release:
(a) is not federally permitted as defined in CERCLA;
(b) exceeds the reportable quantity; and
(c) occurs in a manner which would require notification under CERCLA section 103.
The release must meet all three criteria in order to be reported under EPCRA section 304(a)(2).
As an initial matter, air emissions from animal waste at farms are generally not federally permitted and so would meet (a).
For such emissions that exceed a reportable quantity (and thus meet (b)), the question then becomes whether the release “occurs in a manner which would require notification” under CERCLA. The FARM Act expressly excludes certain types of releases—air emissions from animal waste—from CERCLA reporting. Accordingly, air emissions from animal waste do not “occur in a manner” which would require notification under CERCLA, and thus do not meet (c); therefore, these releases fall out of the reporting requirements of EPCRA section 304.
It is important to note that the FARM Act’s reporting exemption is tied to the nature or manner of these releases rather than to a specific substance. The FARM Act does not exempt substances typically associated with animal waste (such as ammonia and hydrogen sulfide) from reporting altogether. Rather, it exempts from reporting only the release of these substances from animal waste into the air. Because air emissions from animal waste do not “occur in a manner” which would require notification under CERCLA, they do not meet the requirement under (c). As a result, the three requirements to trigger reporting under EPCRA section 304(a)(2) are not met and these releases do not need to be reported.
For more information about EPA’s interpretation of how the FARM Act impacts CERCLA and EPCRA reporting by farms of air emissions from animal waste, see EPA’s How does the Fair Agricultural Reporting Method (FARM) Act impact reporting of air emissions from animal waste under CERCLA Section 103 and EPCRA Section 304?.
The Bottom Line – Farms do not need to report air emissions from animal waste at farms under either CERCLA or EPCA.
Farms do not need to submit a CERCLA report – The FARM Act amended CERCLA section 103(e) to exempt air emissions from animal waste (including decomposing animal waste) at a farm from CERCLA reporting. Other releases of hazardous substances that meet or exceed reportable quantities still require reporting under CERCLA.
If you made an initial notification to the national response center before the FARM Act was passed, you do not need to submit a written report to the EPA regional office. No additional reporting is required.
Farms do not need to submit an EPCRA report – Based on the criteria for EPCRA section 304 release reporting, air emissions from animal waste at farms do not need to be reported under EPCRA because these types of releases are now exempt from reporting under CERCLA. Furthermore, the statute excludes farms that only use substances in “routine agricultural operations” from reporting releases of hazardous substances under EPCRA section 304.
EPA is working on a proposed rule to amend the release notification regulations under EPCRA to codify the agency’s interpretation under the FARM Act that air emissions from animal waste at farms are not subject to EPCRA reporting.
How does the FARM Act impact reporting of other types of releases (i.e., those that are not air emissions from animal waste)?
The FARM Act applies only to the reporting of air emissions from animal waste. The Act does not exempt any other type of releases at a farm from reporting. In other words, the FARM Act does not apply to releases of substances from animal waste into non-air environmental media, nor to releases into air from sources other than animal waste at farms. For example, a release from animal waste into water (e.g., a lagoon breach) or a release from an anhydrous ammonia storage tank into the air would trigger reporting requirements under CERCLA if they exceed reportable quantities.