CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal Waste, 73700-73708 [E7-25231]

Download as PDF 73700 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 302 and 355 [EPA–HQ–SFUND–2007–0469; FRL–8511–4] RIN 2050–AG37 CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal Waste Environmental Protection Agency (EPA). ACTION: Proposed rule. jlentini on PROD1PC65 with PROPOSALS AGENCY: SUMMARY: This notice of proposed rulemaking provides notice of, and requests comments, including any relevant data, on a proposed administrative reporting exemption from particular notification requirements under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and the Emergency Planning and Community Right-toKnow Act, also known as Title III of the Superfund Amendments and Reauthorization Act. Specifically, the proposed administrative reporting exemption applies to releases of hazardous substances to the air where the source of those hazardous substances is animal waste at farms. Nothing in this proposed rule, however, would change the notification requirements if hazardous substances are released to the air from any other source other than animal waste at farms (i.e., ammonia tanks), as well as releases of any hazardous substances from animal waste to any other environmental media, (i.e., soil, ground water, surface water) when the release of those hazardous substances is at or above its reportable quantity per 24 hours. This administrative reporting exemption is protective of human health and the environment and consistent with the Agency’s goal to reduce reporting burden where there would likely be no Federal, state or local emergency response to such release reports. Eliminating such reporting will allow emergency response officials to better focus on releases where the Agency is more likely to take a response action. Finally, in proposing this administrative reporting exemption from the notification requirements under the Comprehensive Environmental Response, Compensation, and Liability Act, section 103(a) and the Emergency Planning and Community Right to Know Act, section 304, EPA is not proposing to limit any of its authorities VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 under CERCLA sections 104 (response authorities), 106 (abatement actions), 107 (liability), or any other provisions of the Comprehensive Emergency Response, Compensation, and Liability Act or the Emergency Planning and Community Right to Know Act in this rulemaking. DATES: Comments must be received on or before March 27, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– SFUND–2007–0469, by one of the following methods: • www.regulations.gov: Follow the on-line instructions for submitting comments. • E-mail: superfund.docket@epa.gov. • Fax: (202) 566–9744. • Mail: Superfund Docket, Environmental Protection Agency, Mail code: [2822T], 1200 Pennsylvania Ave., NW., Washington, DC 20460. • Hand Delivery: EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA–HQ–SFUND–2007– 0469. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket, visit the EPA Docket Center homepage at http:// www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to Unit I.B of the SUPPLEMENTARY INFORMATION section of this document. Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Superfund Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the Superfund Docket is (202) 566–0276. FOR FURTHER INFORMATION CONTACT: Lynn M. Beasley, Regulation and Policy Development Division, Office of Emergency Management (5104A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564–1965; fax number: (202) 564–2625; e-mail address: Beasley.lynn@epa.gov. SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in the following outline: I. General Information A. Does This Action Apply to Me? B. What Should I Consider As I Prepare My Comments for EPA? C. What Is the Statutory Authority for This Rulemaking? D. Which Hazardous Substances Are We Proposing to Exempt From the Notification Requirements of CERCLA and EPCRA? II. Background III. Summary of This Action A. What Is the Scope of This Proposed Rule? B. Proposed Definitions C. What Is Not Included Within the Scope of This Proposed Rule? D. What Is EPA’s Rationale for This Administrative Reporting Exemption? E. What Are the Economic Impacts of This Administrative Reporting Exemption? IV. Statutory and Regulatory Reviews A. Executive Order 12866 (Regulatory Planning and Review) B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132 (Federalism) E:\FR\FM\28DEP1.SGM 28DEP1 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) G. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211 (Energy Effects) I. National Technology Transfer and Advancement Act of 1995 (‘‘NTTAA’’) J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) I. General Information A. Does This Action Apply to Me? Type of entity Examples of affected entities Industry .............. NAICS Code 111—Crop Production. NAICS Code 112—Animal Production. State Emergency Response Commissions, and Local Emergency Planning Committees. National Response Center. State and/or Local Governments. Federal Government. jlentini on PROD1PC65 with PROPOSALS This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility is affected by this action, you should carefully examine the criteria in section III.A of this proposed rule and the applicability criteria in §§ 302.6 and 355.40 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. What Should I Consider as I Prepare My Comments for EPA? In an effort to implement the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right to Know Act (EPCRA) more efficiently, EPA is proposing to establish an administrative reporting exemption from the notification requirements of CERCLA and EPCRA for releases of hazardous substances, such as ammonia and hydrogen sulfide, to the air where the source of the release is animal waste at farms. The Agency believes that a federal response to such notifications is impractical and unlikely. In addition, nothing in this proposal would limit EPA’s authority to take action under its VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 various authorities under CERCLA sections 104 (response authorities), 106 (abatement actions), 107 (liability), or any of provisions of CERCLA or EPCRA (other than ECPCRA section 304) through this rulemaking. Therefore, when submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/ or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible. • Make sure to submit your comments by the comment period deadline identified. C. What Is the Statutory Authority for This Rulemaking? Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601, et seq., as amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986, gives the Federal government broad authority to respond to releases or threats of releases of hazardous substances from vessels and facilities. The term ‘‘hazardous substance’’ is defined in section 101(14) of CERCLA primarily by reference to other Federal environmental statutes. Section 102 of CERCLA gives the Environmental Protection Agency (EPA) authority to designate additional hazardous substances. Currently there are approximately 760 CERCLA hazardous substances, exclusive of Radionuclides, F-, K-, and Unlisted Characteristic Hazardous Wastes. CERCLA Section 103(a) calls for immediate notification to the National Response Center (NRC) when the person in charge of a facility has knowledge of a release of a hazardous substance equal to or greater than the reportable quantity (RQ) established by EPA for that substance. In addition to the notification requirements established pursuant to PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 73701 CERCLA section 103, section 304 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001 et seq., requires the owner or operator of certain facilities to immediately report to State and local authorities releases of CERCLA hazardous substances or any extremely hazardous substances (EHSs) if they exceed their RQ (see 40 CFR 355.40). This proposed rule only applies to CERCLA section 103 notification requirements, including the provisions that allow for continuous release reporting found in paragraph (f)(2) of CERCLA section 103, and EPCRA section 304 notification requirements. The Agency has previously granted such administrative reporting exemptions (AREs) where the Agency has determined that a federal response to such a release is impracticable or unlikely. For example, on March 19, 1998, the Agency issued a final rule (see 63 FR 13459) that granted exemptions for releases of naturally occurring radionuclides. The rule entitled, Administrative Reporting Exemptions for Certain Radionuclide Releases (‘‘Radionuclide ARE’’), granted exemptions for releases of hazardous substances that pose little or no risk or to which a Federal response is infeasible or inappropriate (see 63 FR 13461). The Agency relies on CERCLA sections 102(a), 103, and 115 (the general rulemaking authority under CERCLA) as authority to issue regulations governing section 103 notification requirements. The Agency relies on EPCRA section 304 as authority to issue regulations governing EPCRA section 304 notification requirements, and EPCRA section 328 for general rulemaking authority. D. Which Hazardous Substances Are We Proposing to Exempt From the Notification Requirements of CERCLA and EPCRA? EPA proposes to exempt certain releases of hazardous substances to the air from the notification requirements of CERCLA and EPCRA, as implemented in 40 CFR 302.6 and 40 CFR 355.40, respectively. Specifically, we are proposing to exempt those hazardous substance releases which are emitted to the air (typically during digestion, break-down or decomposition) from animal waste at farms. Although ammonia and hydrogen sulfide are the most recognized hazardous substances that are emitted from animal waste, there may also be some amounts of additional hazardous substances released. Ammonia is a by-product of the break-down of urea and proteins that are E:\FR\FM\28DEP1.SGM 28DEP1 73702 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules contained in animal waste. Hydrogen sulfide is another by-product of the break-down of animal waste. These hazardous substances can be emitted when animal waste is contained in a lagoon or stored in under-floor manure pits in some animal housing, manure stockpiles, or in the open where animals congregate. Open air or dry manure stockpiles are not generally associated with significant hydrogen sulfide emissions. Additional hazardous substances may be emitted to the air from animal waste.1 These hazardous substances would typically be subject to the notification requirements of CERCLA section 103 and EPCRA section 304 once their RQ is met or exceeded. However, this proposed rule will extend the administrative reporting exemption to all hazardous substances emitted to the air from animal waste at farms. II. Background Under CERCLA section 103(a), the person in charge of a vessel or facility from which a CERCLA hazardous substance has been released into the environment in a quantity that equals or exceeds its RQ must immediately notify the NRC of the release. A release is reportable if an RQ or more is released into the environment within a 24-hour period (see 40 CFR 302.6). This reporting requirement serves as a trigger for informing the Federal government of a release so that Federal personnel can evaluate the need for a response in accordance with the National Contingency Plan (NCP) and undertake any necessary response action in a timely fashion. The NRC is located at the United States Coast Guard (USCG) headquarters and is the national communications center for the receipt of all pollution incidents reporting. The NRC is continuously manned for processing activities related to receipt of the notifications. NCP regulations, 40 CFR 300.125, require that notifications of discharges and releases be made telephonically and state that the NRC will immediately relay telephone notices of discharges (i.e., oil) or releases (i.e., hazardous substances) to jlentini on PROD1PC65 with PROPOSALS 1 Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs. National Research Council of the National Academies, The National Academies Press, Washington, DC (2003), p. 54. Additional hazardous substances may include nitrous oxide (NO) and volatile organic compounds (VOCs). The major constituents of VOC emissions could include organic sulfides, disulfides, C4 to C7 aldehydes, trimethylamines, C4 amines, quinoline (RQ = 5000 pounds), dimethylpyrazine, and C3 to C6 organic acids, along with lesser amounts of aromatic compounds and C4 to C7 alcohols, ketones, and aliphatic hydrocarbons. VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 the appropriate predesignated federal on-scene coordinator (OSC). The NRC receives an average of approximately 34,000 2 notifications per year. Of those notifications, averages of approximately 33,700 3 discharge or release notifications are relayed to EPA. Under EPCRA section 304(a), three release scenarios require notification. • First, if a release of an extremely hazardous substance occurs from a facility at which a hazardous chemical is produced, used, or stored, and such release requires a notification under section 103(a) of CERCLA, the owner or operator of a facility shall immediately provide notice to the community emergency coordinator for the local emergency planning committees (LEPC) for any area likely to be affected by the release and to the State emergency planning commission (SERC) of any State likely to be affected by the release. (EPCRA section 304(a)(1)) • EPCRA section 304(a) also requires the owner or operator of the facility to immediately provide notice under EPCRA section 304(b) for either of the following two scenarios: Æ If the release is an extremely hazardous substance, but not subject to the notifications under section 103(a) of CERCLA. (EPCRA section 304(a)(2)) Æ If the release is not an extremely hazardous substance and only subject to the notifications under section 103(a) of CERCLA. (EPCRA section 304(a)(3)) EPCRA notification is to be given to the community emergency coordinator for each LEPC for any area likely to be affected by the release, and the SERC of any state likely to be affected by the release. Through this notification, state and local officials can assess whether a response action to the release is appropriate. EPCRA section 304 notification requirements apply only to releases that have the potential for offsite exposure and that are from facilities that produce, use, or store a ‘‘hazardous chemical,’’ as defined by regulations promulgated under the Occupational Safety and Health Act of 1970 (OSHA) (29 CFR 1910.1200(c)) and by section 311 of EPCRA. In establishing the RQs for the various hazardous substances, EPA adjusted the 2 Average number of notifications from years 2000–2006, National Response Center statistics available at, http://www.nrc.uscg.mil/incident97– 02.html. See Superfund Docket EPA–HQ–SFUND– 2007–0469 for a summary table. 3 Average number of notifications made to EPA from years 2000–2006, National Response Center statistics available at, http://www.nrc.uscg.mil/ epa97–02.html. The average was calculated from those notifications that went to the EPA Regions 1 through 10, including notifications to the EPA Regions for Continuous Releases. See Superfund Docket EPA–HQ–SFUND–2007–0469 for a summary table. PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 statutory RQs of CERCLA hazardous substances based on specific scientific and technical criteria that relate to the possibility of harm from the release of a hazardous substance in a reportable quantity. (See 50 FR 13456, April 4, 1985.) The adjusted RQs did not reflect the determination that a release of a substance will be hazardous at the RQ level and not hazardous below that level. EPA did not, at the time, make such a determination because the actual hazard will vary with the unique circumstances of the release. Instead, the RQs reflect the Agency’s judgment of which releases should trigger notification to the federal government so that the government may assess to what extent, if any, a federal removal or remedial action may be necessary. (See 50 FR 13465.) For the purposes of making RQ adjustments under CERCLA, EPA adopted the five RQ levels of 1, 10, 100, 1000, and 5000 pounds originally established pursuant to CWA section 311 (see 40 CFR part 117). The Agency adopted the five-level system primarily because: (1) It has been successfully used pursuant to the CWA, (2) the regulated community was familiar with these five levels, and (3) it provided a relatively high degree of discrimination among the potential hazards posed by different CERCLA hazardous substances. The methodology used for adjusting RQs begins with an evaluation of the intrinsic physical, chemical, and toxicological properties of each designated hazardous substance. The intrinsic properties examined—called ‘‘primary criteria’’—are aquatic toxicity, mammalian toxicity (oral, dermal, and inhalation), ignitability, reactivity, and chronic toxicity.4 In addition, substances that were identified as potential carcinogens were evaluated for their relative activity as potential carcinogens. The Agency ranks each intrinsic physical, chemical, and toxicological property on a five-tier scale, associating a specific range of values on each scale with a particular RQ value. Thus, each substance receives several tentative RQ values based on its particular properties. For example, ammonia received a tentative RQ of 100 pounds based on its aquatic toxicity levels; however, for the intrinsic property, mammalian toxicity (inhalation), ammonia received a tentative RQ value of 1000 pounds. The lowest of all of the tentative RQs for 4 Chronic toxicity was defined as toxicity resulting from repeated or continuous exposure to either a single release or multiple releases of a hazardous substance. E:\FR\FM\28DEP1.SGM 28DEP1 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS each hazardous substance becomes the ‘‘primary criteria RQ’’ for that substance. After the primary criteria RQs are assigned, substances are further evaluated for their susceptibility to certain extrinsic degradation processes. These ‘‘secondary criteria’’ are biodegradation, hydrolysis, and photolysis, or ‘‘BHP.’’ If the hazardous substance degrades relatively rapidly to a less harmful compound through one or more of these processes when it is released into the environment, the primary criteria RQ is raised one level. The single RQ assigned to each hazardous substance on the basis of the primary criteria and BHP becomes the adjusted RQ for that substance. The single RQ approach was adopted to provide a relatively simple reporting system that does not unduly burden either EPA or the regulated community. Since releases into more than one medium often occur, the single RQ approach prevents confusion. Section 102(a) of CERCLA expressly authorizes the Administrator to set a single quantity for each hazardous substance, and the legislative history emphasizes the virtues of simplicity and administrative convenience. (For a more detailed discussion of the methodology that was used to establish the RQs for hazardous substances, see 50 FR 13465, Apr. 4, 1985.) Owners and operators of farms, like all other facilities, are required to report the release of hazardous substances into the environment 5 in accordance with CERCLA section 103 and EPCRA section 304 when it meets or exceeds the RQ of the hazardous substance. For example, releases into the environment of ammonia or any other hazardous substance, from tanks located on a farm, at or above an RQ are reportable under CERCLA section 103 and EPCRA section 304. In 2005, EPA received a petition from the National Chicken Council, National Turkey Federation, and U.S. Poultry & Egg Association, seeking an exemption from CERCLA and EPCRA reporting requirements for ammonia emissions from poultry operations. The Agency published a notice in the Federal Register on December 27, 2005 (70 FR 76452) that acknowledged receipt of the petition and requested public comment. 5 Environment means, ‘‘(A) the navigable waters, the waters of the contiguous zone, and the ocean waters for which the natural resources are under the exclusive management authority of the United States * * *, and (B) any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.’’ See CERCLA section 101(8). VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 The comment period closed on March 27, 2006. Also, in 2005, EPA offered the owners and operators of animal agricultural operations an opportunity to sign up for an air monitoring study. The purpose of the air monitoring study is to develop emissions estimating methodologies for all animal agricultural operations.6 Over 2600 animal feeding operations, representing over 14,000 farms, signed up for the study. The monitoring study which began in the spring of 2007 includes 25 representative sites (lagoons or barns) on 21 different farms in 10 states (NC, NY, IA, WI, CA, KY, TX, WA, IN, and OK). The sites will be monitored for two years, allowing the Agency to account for emissions variability by season, and for the effect of any seasonal operational changes (such as pumping out lagoons), that could have an effect on emission levels. At the end of the monitoring study, EPA will use the data along with any other relevant, available data to develop emissions estimating methodologies. The monitoring study results will be publicly available upon completion of the study. In addition, EPA will publish the emissions estimating methodologies based on these results, within 18 months of the study’s conclusion. Thus, such information will be widely available to the public. III. Summary of This Action A. What Is the Scope of This Proposed Rule? The scope of this proposed rule is limited to releases of hazardous substances to the air from animal waste at farms. Specifically, the Agency is proposing an administrative reporting exemption from the CERCLA section 103 and EPCRA section 304 notification requirements as implemented in 40 CFR 302.6 and 302.8 and 40 CFR 355.40, respectively. The scope of this proposed rule is intended to include all hazardous substances that may be emitted to the air from animal waste at farms. (See Section I.D. for further discussion of which hazardous substances we are 6 The National Academy of Sciences, Board on Agriculture and Natural Resources appointed a 16person ad hoc committee, the Committee on Air Emissions from Animal Feeding Operations, to evaluate the scientific information needed to address issues raised by EPA regarding CAA regulation of air emissions from animal feeding operations (AFOs) and the U.S. Department of Agriculture aid to farmers in mitigating the effects of air emissions with modified agricultural practices. One of the findings of that Committee was, in part, direct measurements of air emissions at all AFOs are not feasible. Nevertheless, measurements on a statistically representative subset of AFOs are needed. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 73703 proposing to include within the administrative reporting exemption.) B. Proposed Definitions In proposing this rule, the Agency believes it is important to provide clarity with respect to the scope of the proposed reporting exemption. Therefore, the Agency is proposing definitions for animal waste and farm (to be added to the Code of Federal Regulations) that only pertains to regulations promulgated pursuant to CERCLA section 103 and EPCRA section 304, specifically 40 CFR 302.3 (definitions) and 40 CFR 355.20 (definitions). Animal Waste—means manure (feces, urine, other excrement, and bedding, produced by livestock that has not been composted), digestive emissions, and urea. The definition includes animal waste when mixed or commingled with bedding, compost, feed, soil and other materials typically found with animal waste. The Agency is not aware of any existing definition for animal waste and thus, seeks comment from the public on the appropriateness, clarity and completeness of this definition. The Agency also is limiting the proposed reporting exemption to animal waste that is generated on farms, and is proposing a specific definition for farm under this proposal. For this proposed exemption only, EPA defines farm, by using the definition found in the National Agricultural Statistics Service (NASS) Census of Agriculture, and adopting it. Also, the Agency recognizes that Federal and state research farms utilizing farm animals are subject to the conditions experienced on other farms; therefore, EPA proposes to include Federal and state poultry, swine, dairy and livestock research farms. Farm—means (a.) any place whose operation is agricultural and from which $1,000 or more of agricultural products were produced and sold, or normally would have been sold, during the census year. Operations receiving $1,000 or more in Federal government payments are counted as farms, even if they have no sales and otherwise lack the potential to have $1,000 or more in sales; or, (b.) a Federal or state poultry, swine, dairy or livestock research farm. EPA seeks comment on the proposed definition for a farm, and whether an alternative definition may be more appropriate. In addition, the Agency is aware that animal waste also is generated at other facilities, such as zoos and circuses. Because the focus of this proposal is on animal waste generated or found at farms, we are not proposing to expand the reporting E:\FR\FM\28DEP1.SGM 28DEP1 73704 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS exemption beyond such facilities. However, the Agency requests comment on whether the reporting exemption should be expanded to other types of facilities that also generate animal waste, and if so, what other types of facilities should be included in the reporting exemption. Any alternative approaches presented must include an appropriate rationale and supporting data in order for the Agency to be able to consider them for final action. C. What Is Not Included Within the Scope of This Proposed Rule? As noted previously, this administrative reporting exemption is limited in scope to those releases of hazardous substances to the air from animal waste at farms. EPA is not proposing to exempt from CERCLA section 103 or EPCRA section 304 notification requirements for releases of hazardous substances from animal waste to any other environmental media or at any other facilities other than farms (i.e., meat processing plants, slaughter houses, tanneries). In addition, EPA is not proposing to exempt from CERCLA section 103 or EPCRA section 304 notification requirements of any release of hazardous substances to the air from any source other than animal waste at farms. The Agency believes that there could be releases to the air from other sources of hazardous substances at farms where an emergency response to that release may be possible. For example, EPA is not proposing to exempt ammonia releases from ammonia storage tanks at farms. In addition, notification of a release of a hazardous substance, which meets or exceeds its RQ, from animal waste to any environmental media (other than air) is still required under this proposal. Thus, notification that there was a release of a hazardous substance that meets or exceeds the RQ where stored animal waste is released into water (i.e., a lagoon burst) would still be required under this proposal. Such notifications would alert the government to an emergency situation that could pose serious environmental consequences if not immediately addressed. Hence, those releases to the environment would still be reportable at or above their RQ as they are more likely to result in a response action from Federal, state or local governments. No EPCRA statutory requirements, other than the emergency hazardous substance notification requirements under EPCRA section 304, are included within this proposal. The proposal does not limit the Agency’s authority under CERCLA sections 104 (response VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 authorities), 106 (abatement actions), 107 (liability), or any other provisions of CERCLA and EPCRA to address releases of hazardous substances from animal waste at farms. D. What Is EPA’s Rationale for This Administrative Reporting Exemption? EPA’s rationale for this administrative reporting exemption is based on the purpose of notifying the NRC, and SERCs and LEPCs when a hazardous substance is released, and then the likelihood that a response to that release would be taken by any government agency. Upon receipt of a notification from the NRC, EPA determines whether a response is appropriate. See 40 CFR 300.130(c). If it is determined that a response is appropriate, the NCP regulations describe the roles and responsibilities for responding to the release. Thus, the question that EPA considered is whether the Agency would ever take a response action, as a result of such notification, for releases of hazardous substances to the air from animal waste at farms. We believe not and, thus, are proposing to no longer require such reporting. This conclusion is based in part on EPA’s experience.7 Specifically, to date, EPA has not initiated a response to any NRC notifications of ammonia, hydrogen sulfide, or any other hazardous substances released to the air where animal waste at farms is the source of that release. Moreover, we cannot foresee a situation where the Agency would take any future response action as a result of such notification of releases of hazardous substances from animal waste at farms because in all instances the source (animal waste) and nature (to the air over a broad area) are such that on-going releases makes an emergency response unnecessary, impractical and unlikely. Typically, if a response is taken as a result of a release notification, the government may require monitoring or make recommendations to local officials regarding evacuations and shelter-inplace. While this may be an appropriate response to hazardous substances releases from tanks, pipes, vents or in train derailment situations where the emergency may result in acute exposures, the Agency does not believe that this is a necessary or appropriate response to the release of hazardous 7 Notifications must still be made when and if hazardous substances are released to the air at farms from any other source (other than animal waste), as well as releases of any hazardous substances from animal waste to any other environmental media (i.e., soil, groundwater and surface water). PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 substances to the air from animal waste at farms. Several states have indicated that such response actions are unlikely to be taken as a result of a notification of releases of hazardous substances from animal waste at farms. EPA received 26 comment letters from state and/or local emergency response agencies in its request for public comment on the 2005 petition from the National Chicken Council, National Turkey Federation, and U.S. Poultry & Egg Association (‘‘poultry petition’’). All of those commenters supported granting the poultry petition—that is, exempting from CERCLA and EPCRA reporting requirements for ammonia emissions from poultry operations. Generally, those agencies supported the petition because they are aware of the operations in their jurisdictions, were concerned about the resource implications of receiving the notifications (i.e., having to process the notifications), and would not conduct an emergency response as a result of the notifications. Thus, the comments received from state and/or local emergency response agencies is consistent with EPA’s view. Furthermore, the Agency does not need to receive such notifications in order to enforce applicable CWA, CAA, RCRA, and/or other applicable CERCLA and EPCRA regulations at farms. EPA still retains those enforcement authorities to address threats to human health and the environment. We estimate that the private sector, state and local, and the Federal governments spend approximately three hours per release to prepare and process episodic notifications and 24.5 hours to process continuous release notifications.8 Based on these reasons, the Agency believes it is appropriate to propose to eliminate the reporting requirement under CERCLA section 103 and EPCRA section 304 for hazardous substances released to the air at farms where the source of those hazardous substances is animal waste. Nevertheless, the Agency solicits comments on whether there might be a situation where a response would be triggered by such a notification of the release of hazardous substances to the air from animal waste 8 For episodic releases, this estimate was calculated using the burden hours described in the Information Collection Requests 1049.10 and 1395.06 for episodic releases of hazardous substances to the NRC and emergency notifications to SERCs and LEPCs. For continuous releases, this estimate was calculated using the burden hours described in the Information Collection Request 1445.06 for continuous release reporting requirements. Supporting statements for both information collection requests are available in the Superfund Docket, EPA–HQ–SFUND–2007–0469. E:\FR\FM\28DEP1.SGM 28DEP1 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules CAFO Rule (see 68 FR 7176, Feb 12, 2003). We also assumed that over the ten year period (2009–2018) that there would be a declining number of CAFOs; however, some of those operations would increase in size. E. What Are the Economic Impacts of This Administrative Reporting Exemption? This proposed administrative reporting exemption will reduce the costs of complying with CERCLA section 103 and EPCRA section 304 for those farms that release hazardous substances to air from animal waste. Entities that are expected to experience a reduction in burden and cost include both the farms that are no longer required to report those releases, as well as the Federal, state and local governments responsible for receiving the reports. The economic analysis completed for this proposed rule is available in the docket for this rulemaking and is based on the underlying economic analyses that were completed for the regulations that established the notification requirements.9 We estimate that this proposed rule will reduce burden on farms associated with making notifications under CERCLA section 103 and EPCRA section 304 by approximately 3,432,000 hours over the ten year period beginning in 2009 and associated costs by approximately $160,173,000 over the same period. We estimate that this proposed rule will also reduce burden on Federal, State and local governments responsible for receiving and processing the notifications under CERCLA section 103 and EPCRA section 304 by approximately 161,000 hours over the ten year period beginning in 2009 and associated costs by approximately $8,109,000 over the same period. In evaluating the potential burden and cost savings to those farms that would no longer be required to make notifications under CERCLA section 103 and EPCRA section 304 and the government entities that are no longer required to receive and process such notifications, we used the same universe as used in the 2003 jlentini on PROD1PC65 with PROPOSALS at farms, and if so, what an appropriate response would be. Any comments that would support such an action should include an appropriate rationale in order for the Agency to be able to consider it for final action. IV. Statutory and Regulatory Reviews 9 The following documents are available in the Superfund Docket, EPA–HQ–SFUND–2007–00469: Regulatory Impact Analysis of Reportable Quantity Adjustments Under Sections 102 and 103 of the Comprehensive Environmental Response, Compensation, and Liability Act, Volume 1 (March 1985); Regulatory Impact Analysis in Support of Rulemaking Under Sections 302, 303, and 304 of Title III of the Superfund Amendments and Reauthorization Act of 1986 (April 1987); and Economic Analysis in Support of the Continuous Release Reporting Regulation Under Section 103(f)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (April 1990). VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 A. Executive Order 12866 (Regulatory Planning and Review) Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a ‘‘significant regulatory action.’’ The Order defines ‘‘significant regulatory action’’ as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. Pursuant to the terms of Executive Order 12866, it has been determined that this proposed rule is a ‘‘significant regulatory action’’ because it raises novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this proposed rule to the Office of Management and Budget (OMB) for review and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose any new information collection burden. Rather, this proposed rule represents a reduction in burden for both industry and the government by administratively exempting the reporting requirement for releases of hazardous substances to the air from animal waste at farms. OMB has previously approved the information collection requirements contained in the existing regulations 40 CFR part 302 and 40 CFR part 355 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. and has assigned OMB control number 2050–0046, EPA ICR number 1049.10 for 40 CFR 302.6 (Episodic releases of oil and hazardous substances), OMB PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 73705 control number 2050–0086, EPA ICR number 1445.06 for 40 CFR 302.8 (Continuous release reporting requirements) and OMB control number 2050–0092, EPA ICR number 1395.06 for 40 CFR 355 (Emergency planning and notification). A copy of the OMB approved Information Collection Request (ICR) may be obtained by writing to: Director, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566–1700. EPA ICR number 1049.10 covers collection requirements for notification of episodic releases of oil and hazardous substances; EPA ICR number 1445.06 covers collection requirements for the continuous release reporting requirements; and EPA ICR number 1395.06 covers collection requirements for the notification requirements for releases of hazardous substances and extremely hazardous substances to both SERCs and LEPCs. Each of these information collections are affected by this proposed rule. However, this proposed rule represents a reduction in the burden for both industry and the government through an administrative reporting exemption from those reporting requirements. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA’s regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies E:\FR\FM\28DEP1.SGM 28DEP1 jlentini on PROD1PC65 with PROPOSALS 73706 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-forprofit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives ‘‘which minimize any significant economic impact of the rule on small entities.’’ 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This rulemaking will relieve regulatory burden because we propose to eliminate the reporting requirement for releases of hazardous substances to the air from animal waste at farms. We expect the net reporting and recordkeeping burden associated with reporting air releases of hazardous substances from animal waste at farms under CERCLA section 103 and EPCRA section 304 to decrease. This reduction in burden will be realized by small and large businesses. We have therefore concluded that this proposed rule will relieve regulatory burden for all affected small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ‘‘Federal mandates’’ that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most costeffective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local, or tribal governments or the private sector. That is, the proposal imposes no enforceable duty on any state, local or tribal governments or the private sector; rather, this proposed rule will result in burden reduction in the receipt of notifications of the release to the air of hazardous substances, primarily ammonia and hydrogen sulfide, from animal waste at farms. Additionally, EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. This proposed rule reduces regulatory burden and the private sector is not expected to incur costs exceeding $100 million. Thus, the proposal is not subject to the requirements of Sections 202 and 205 of UMRA. PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 E. Executive Order 13132 (Federalism) Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.’’ This proposed rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. There are no state and local government bodies that incur direct compliance costs by this proposed rulemaking. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicits comment on this proposed rule from state and local officials. F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) Executive Order 13175, entitled ‘‘Consultation and Coordination with Indian Tribal Governments’’ (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.’’ This proposed rule does not have tribal implications, as specified in Executive Order 13175. This proposed rule does not significantly or uniquely affect the communities of Indian tribal governments, nor would it impose substantial direct compliance costs on them. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks) The Executive Order 13045, entitled ‘‘Protection of Children from Environmental Health Risks and Safety Risks’’ (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be ‘‘economically E:\FR\FM\28DEP1.SGM 28DEP1 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules significant’’ as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866. H. Executive Order 13211 (Energy Effects) This proposed rule is not a ‘‘significant energy action’’ as defined in Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This proposed rule will reduce the burden associated with the notification of releases to air of hazardous substances from animal waste at farms. jlentini on PROD1PC65 with PROPOSALS I. National Technology Transfer and Advancement Act of 1995 (‘‘NTTAA’’) Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (‘‘NTTAA’’), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. As discussed in the Background section of the preamble for this proposed rule, the adjusted RQs do not reflect the determination that a release of a substance will be hazardous at the RQ level and not hazardous below that level. Instead, the RQs reflect the Agency’s judgment of which releases should trigger notification to the federal government so that the government may assess to what extent, if any, a federal removal or remedial action may be necessary. In addition, the requirement to notify the government under CERCLA section 103 and EPCRA section 304 does not require the notifying entity to take any specific action to address the release. Therefore because the notification is not specifically designed to protect human health or the environment and EPA has determined that a response action would be unlikely, EPA does not believe that exempting these releases from CERCLA section 103 and EPCRA section 304 notification requirements will have a disproportionately high and adverse human health or environmental effect on minority or low-income populations. This proposed rule addresses information collection requirements for CERCLA section 103 and EPCRA section 304. No EPCRA programs, other than the emergency notification program under EPCRA section 304, are included in this proposal and the Agency is not proposing to limit CERCLA sections 104 (response authorities), 106 (abatement actions), 107 (liability), or any other provisions of CERCLA through this proposed rulemaking. The Agency also retains its authority to apply existing statutory provisions in its efforts to prevent minority and or low-income communities from being subject to disproportionately high and adverse impacts and environmental effects. We therefore have determined that this proposal does not have a disproportionately high and adverse human health or environmental effects on minority or low-income populations. PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 73707 List of Subjects 40 CFR Part 302 Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. 40 CFR Part 355 Air pollution control, Chemicals, Disaster assistance, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Dated: December 20, 2007. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 302—DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION 1. The authority citation for part 302 continues to read as follows: Authority: 42 U.S.C. 9602, 9603, 9604; 33 U.S.C. 1321 and 1361. 2. Section 302.3 is amended by adding in alphabetical order the definitions of ‘‘Animal waste’’ and ‘‘Farm’’ to read as follows: § 302.3 Definitions. * * * * * Animal Waste means manure (feces, urine, other excrement, and bedding, produced by livestock that has not been composted), digestive emissions, and urea. The definition includes animal waste when mixed or commingled with bedding, compost, feed, soil and other typical materials found with animal waste. * * * * * Farm means: (1) Any place whose operation is agricultural and from which $1,000 or more of agricultural products were produced and sold, or normally would have been sold, during the census year. Operations receiving $1,000 or more in Federal government payments are counted as farms, even if they have no sales and otherwise lack the potential to have $1,000 or more in sales; or (2) A Federal or state poultry, swine, dairy or livestock research farm. * * * * * 3. Section 302.6 is amended by adding paragraph (e)(3) to read as follows: E:\FR\FM\28DEP1.SGM 28DEP1 73708 § 302.6 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules Notification requirements. * * * * * (e) * * * (3) Releases to the air of any hazardous substance from animal waste at farms. * * * * * PART 355—EMERGENCY PLANNING AND NOTIFICATION 4. The authority citation for part 355 continues to read as follows: Authority: 42 U.S.C. 11002, 11004, and 11048. * * * * Animal Waste as used in § 355.40 only, animal waste means manure (feces, urine, other excrement, and bedding, produced by livestock that has not been composted), digestive emissions, and urea. The definition includes animal waste when mixed or commingled with bedding, compost, feed, soil and other typical materials found with animal waste. * * * * * Farm as used in § 355.40 only, farm means: (1) Any place whose operation is agricultural and from which $1,000 or more of agricultural products were produced and sold, or normally would have been sold, during the census year. Operations receiving $1,000 or more in Federal government payments are counted as farms, even if they have no sales and otherwise lack the potential to have $1,000 or more in sales; or (2) A Federal or state poultry, swine, dairy or livestock research farm. * * * * * 6. Section 355.40 is amended by adding paragraph (a)(2)(viii) to read as follows: jlentini on PROD1PC65 with PROPOSALS Emergency release notification. (a) * * * (2) * * * (viii) Any release to the air of a hazardous substance from animal waste at farms. * * * * * [FR Doc. E7–25231 Filed 12–27–07; 8:45 am] VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 Office of the Inspector General 42 CFR Part 1005 Office of the Secretary 45 CFR Parts 16, 81, 160 and 1303 Office of the Secretary, Centers for Medicare and Medicaid Services, HHS. ACTION: Notice of Proposed Rulemaking. AGENCY: Definitions. BILLING CODE 6560–50–P 42 CFR Parts 422, 423, and 498 Revisions to Procedures for the Departmental Appeals Board and Other Departmental Hearings * § 355.40 Centers for Medicare and Medicaid Services RIN 0991–AB42 5. Section 355.20 is amended by adding in alphabetical order the definitions of ‘‘Animal waste’’ and ‘‘Farm’’ to read as follows: § 355.20 DEPARTMENT OF HEALTH AND HUMAN SERVICES SUMMARY: The Department of Health and Human Services (Department) proposes to amend Departmental regulations governing administrative review by the Departmental Appeals Board (DAB) and certain other administrative review regulations to ensure that the final administrative decision of the Department reflects the considered opinion of the Secretary of Health and Human Services (Secretary). Current regulations at 45 CFR Part 16 governing the review of grant disputes do not specifically require the DAB to follow published guidance issued by the Secretary or a Departmental component. The DAB decision is currently the final administrative decision of the Department on such disputes and currently there is no Secretarial review of this final decision. Similarly, the DAB currently provides the final agency review of the imposition of civil monetary penalties (CMPs) for which administrative appeal is available under 45 CFR Part 160, Subpart E, enforcement sanctions under 42 CFR Part 422 and 423, determinations subject to reconsideration and appeal under 42 CFR Part 498 and the imposition by the Inspector General of the Department (I.G.) or the Centers for Medicare and Medicaid Services (CMS) of exclusions, CMPs and assessments subject to appeal under 42 CFR Part 1005. As in 45 CFR Part 16, the decisions of the DAB under these processes are considered the final agency action on matters, though they are not subject to Secretarial review. This proposed rule would amend DAB regulations to require that the DAB follow published guidance that is not PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 inconsistent with applicable statutes and regulations and would permit the Secretary an opportunity to review DAB decisions to correct errors in the application of law, or deviations from published guidance, in such disputes. This proposed rule would make technical changes to the regulations at 45 CFR Part 16. This proposed rule would also amend hearing and appeal procedures at 45 CFR Part 160, Subpart E and at 42 CFR Parts 422, 423 and 498 to include a parallel statement regarding the treatment of published guidance. Similarly, this proposed rule would amend the procedures at 45 CFR Part 81 to provide a similar statement regarding the treatment of published guidance by hearing examiners and reviewing authorities. In addition, this proposed rule would amend the hearing and appeal procedures at 45 CFR Part 160, Subpart E and 42 CFR Parts 422, 423, 498 and 1005 to provide a parallel opportunity for Secretarial review of DAB decisions. Finally, this proposed rule would revise the procedures for Head Start grantee appeals by applying the current 60-day time limit for ‘‘final decisions’’ to the Board’s decision. DATES: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on January 28, 2008. ADDRESSES: You may submit comments either by E-mail to randolph.pate@hhs.gov or by mail to: Randy Pate, 200 Independence Ave., SW., Room 415F, Washington, DC 20201. Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period. FOR FURTHER INFORMATION CONTACT: Randy Pate, 202–690–7858. SUPPLEMENTARY INFORMATION: I. Background HHS was the first federal grantor agency to offer a structured process of administrative dispute resolution for its grantees on a large scale, when, in 1973, it established what was then called the Departmental Grant Appeals Board. The name was changed to the Departmental Appeals Board (DAB) when, as noted below, the jurisdiction was significantly expanded. The name ‘‘Departmental Appeals Board’’ is now used to refer to two entities: (1) the decision-making body consisting of Board Members, appointed by the Secretary, who issue decisions made by panels of three Board Members; and (2) in general, the larger organization, which is located in the Office of the Secretary and which includes not only the Board, but also E:\FR\FM\28DEP1.SGM 28DEP1

Agencies

[Federal Register Volume 72, Number 248 (Friday, December 28, 2007)]
[Proposed Rules]
[Pages 73700-73708]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-25231]



[[Page 73700]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 302 and 355

[EPA-HQ-SFUND-2007-0469; FRL-8511-4]
RIN 2050-AG37


CERCLA/EPCRA Administrative Reporting Exemption for Air Releases 
of Hazardous Substances From Animal Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This notice of proposed rulemaking provides notice of, and 
requests comments, including any relevant data, on a proposed 
administrative reporting exemption from particular notification 
requirements under the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended, and the Emergency 
Planning and Community Right-to-Know Act, also known as Title III of 
the Superfund Amendments and Reauthorization Act. Specifically, the 
proposed administrative reporting exemption applies to releases of 
hazardous substances to the air where the source of those hazardous 
substances is animal waste at farms. Nothing in this proposed rule, 
however, would change the notification requirements if hazardous 
substances are released to the air from any other source other than 
animal waste at farms (i.e., ammonia tanks), as well as releases of any 
hazardous substances from animal waste to any other environmental 
media, (i.e., soil, ground water, surface water) when the release of 
those hazardous substances is at or above its reportable quantity per 
24 hours. This administrative reporting exemption is protective of 
human health and the environment and consistent with the Agency's goal 
to reduce reporting burden where there would likely be no Federal, 
state or local emergency response to such release reports. Eliminating 
such reporting will allow emergency response officials to better focus 
on releases where the Agency is more likely to take a response action. 
Finally, in proposing this administrative reporting exemption from the 
notification requirements under the Comprehensive Environmental 
Response, Compensation, and Liability Act, section 103(a) and the 
Emergency Planning and Community Right to Know Act, section 304, EPA is 
not proposing to limit any of its authorities under CERCLA sections 104 
(response authorities), 106 (abatement actions), 107 (liability), or 
any other provisions of the Comprehensive Emergency Response, 
Compensation, and Liability Act or the Emergency Planning and Community 
Right to Know Act in this rulemaking.

DATES: Comments must be received on or before March 27, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
SFUND-2007-0469, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: superfund.docket@epa.gov.
     Fax: (202) 566-9744.
     Mail: Superfund Docket, Environmental Protection Agency, 
Mail code: [2822T], 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA West, Room 3334, 1301 Constitution 
Ave., NW., Washington, DC. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-
2007-0469. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm. For additional 
instructions on submitting comments, go to Unit I.B of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Superfund Docket, EPA/DC, 
EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the 
Superfund Docket is (202) 566-0276.

FOR FURTHER INFORMATION CONTACT: Lynn M. Beasley, Regulation and Policy 
Development Division, Office of Emergency Management (5104A), 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: (202) 564-1965; fax number: 
(202) 564-2625; e-mail address: Beasley.lynn@epa.gov.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in 
the following outline:

I. General Information
    A. Does This Action Apply to Me?
    B. What Should I Consider As I Prepare My Comments for EPA?
    C. What Is the Statutory Authority for This Rulemaking?
    D. Which Hazardous Substances Are We Proposing to Exempt From 
the Notification Requirements of CERCLA and EPCRA?
II. Background
III. Summary of This Action
    A. What Is the Scope of This Proposed Rule?
    B. Proposed Definitions
    C. What Is Not Included Within the Scope of This Proposed Rule?
    D. What Is EPA's Rationale for This Administrative Reporting 
Exemption?
    E. What Are the Economic Impacts of This Administrative 
Reporting Exemption?
IV. Statutory and Regulatory Reviews
    A. Executive Order 12866 (Regulatory Planning and Review)
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132 (Federalism)

[[Page 73701]]

    F. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    G. Executive Order 13045 (Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211 (Energy Effects)
    I. National Technology Transfer and Advancement Act of 1995 
(``NTTAA'')
    J. Executive Order 12898 (Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations)

I. General Information

A. Does This Action Apply to Me?

------------------------------------------------------------------------
              Type of entity               Examples of affected entities
------------------------------------------------------------------------
Industry.................................  NAICS Code 111--Crop
                                            Production.
                                           NAICS Code 112--Animal
                                            Production.
State and/or Local Governments...........  State Emergency Response
                                            Commissions, and
                                           Local Emergency Planning
                                            Committees.
Federal Government.......................  National Response Center.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be affected by this action. Other types of entities 
not listed in the table could also be affected. To determine whether 
your facility is affected by this action, you should carefully examine 
the criteria in section III.A of this proposed rule and the 
applicability criteria in Sec. Sec.  302.6 and 355.40 of title 40 of 
the Code of Federal Regulations. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. What Should I Consider as I Prepare My Comments for EPA?

    In an effort to implement the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) and the Emergency Planning and 
Community Right to Know Act (EPCRA) more efficiently, EPA is proposing 
to establish an administrative reporting exemption from the 
notification requirements of CERCLA and EPCRA for releases of hazardous 
substances, such as ammonia and hydrogen sulfide, to the air where the 
source of the release is animal waste at farms. The Agency believes 
that a federal response to such notifications is impractical and 
unlikely. In addition, nothing in this proposal would limit EPA's 
authority to take action under its various authorities under CERCLA 
sections 104 (response authorities), 106 (abatement actions), 107 
(liability), or any of provisions of CERCLA or EPCRA (other than ECPCRA 
section 304) through this rulemaking.
    Therefore, when submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.

C. What Is the Statutory Authority for This Rulemaking?

    Section 104 of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601, et 
seq., as amended by the Superfund Amendments and Reauthorization Act 
(SARA) of 1986, gives the Federal government broad authority to respond 
to releases or threats of releases of hazardous substances from vessels 
and facilities. The term ``hazardous substance'' is defined in section 
101(14) of CERCLA primarily by reference to other Federal environmental 
statutes. Section 102 of CERCLA gives the Environmental Protection 
Agency (EPA) authority to designate additional hazardous substances. 
Currently there are approximately 760 CERCLA hazardous substances, 
exclusive of Radionuclides, F-, K-, and Unlisted Characteristic 
Hazardous Wastes.
    CERCLA Section 103(a) calls for immediate notification to the 
National Response Center (NRC) when the person in charge of a facility 
has knowledge of a release of a hazardous substance equal to or greater 
than the reportable quantity (RQ) established by EPA for that 
substance. In addition to the notification requirements established 
pursuant to CERCLA section 103, section 304 of the Emergency Planning 
and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001 et 
seq., requires the owner or operator of certain facilities to 
immediately report to State and local authorities releases of CERCLA 
hazardous substances or any extremely hazardous substances (EHSs) if 
they exceed their RQ (see 40 CFR 355.40). This proposed rule only 
applies to CERCLA section 103 notification requirements, including the 
provisions that allow for continuous release reporting found in 
paragraph (f)(2) of CERCLA section 103, and EPCRA section 304 
notification requirements.
    The Agency has previously granted such administrative reporting 
exemptions (AREs) where the Agency has determined that a federal 
response to such a release is impracticable or unlikely. For example, 
on March 19, 1998, the Agency issued a final rule (see 63 FR 13459) 
that granted exemptions for releases of naturally occurring 
radionuclides. The rule entitled, Administrative Reporting Exemptions 
for Certain Radionuclide Releases (``Radionuclide ARE''), granted 
exemptions for releases of hazardous substances that pose little or no 
risk or to which a Federal response is infeasible or inappropriate (see 
63 FR 13461).
    The Agency relies on CERCLA sections 102(a), 103, and 115 (the 
general rulemaking authority under CERCLA) as authority to issue 
regulations governing section 103 notification requirements. The Agency 
relies on EPCRA section 304 as authority to issue regulations governing 
EPCRA section 304 notification requirements, and EPCRA section 328 for 
general rulemaking authority.

D. Which Hazardous Substances Are We Proposing to Exempt From the 
Notification Requirements of CERCLA and EPCRA?

    EPA proposes to exempt certain releases of hazardous substances to 
the air from the notification requirements of CERCLA and EPCRA, as 
implemented in 40 CFR 302.6 and 40 CFR 355.40, respectively. 
Specifically, we are proposing to exempt those hazardous substance 
releases which are emitted to the air (typically during digestion, 
break-down or decomposition) from animal waste at farms. Although 
ammonia and hydrogen sulfide are the most recognized hazardous 
substances that are emitted from animal waste, there may also be some 
amounts of additional hazardous substances released.
    Ammonia is a by-product of the break-down of urea and proteins that 
are

[[Page 73702]]

contained in animal waste. Hydrogen sulfide is another by-product of 
the break-down of animal waste. These hazardous substances can be 
emitted when animal waste is contained in a lagoon or stored in under-
floor manure pits in some animal housing, manure stockpiles, or in the 
open where animals congregate. Open air or dry manure stockpiles are 
not generally associated with significant hydrogen sulfide emissions.
    Additional hazardous substances may be emitted to the air from 
animal waste.\1\ These hazardous substances would typically be subject 
to the notification requirements of CERCLA section 103 and EPCRA 
section 304 once their RQ is met or exceeded. However, this proposed 
rule will extend the administrative reporting exemption to all 
hazardous substances emitted to the air from animal waste at farms.
---------------------------------------------------------------------------

    \1\ Air Emissions from Animal Feeding Operations: Current 
Knowledge, Future Needs. National Research Council of the National 
Academies, The National Academies Press, Washington, DC (2003), p. 
54. Additional hazardous substances may include nitrous oxide (NO) 
and volatile organic compounds (VOCs). The major constituents of VOC 
emissions could include organic sulfides, disulfides, C4 
to C7 aldehydes, trimethylamines, C4 amines, 
quinoline (RQ = 5000 pounds), dimethylpyrazine, and C3 to 
C6 organic acids, along with lesser amounts of aromatic 
compounds and C4 to C7 alcohols, ketones, and 
aliphatic hydrocarbons.
---------------------------------------------------------------------------

II. Background

    Under CERCLA section 103(a), the person in charge of a vessel or 
facility from which a CERCLA hazardous substance has been released into 
the environment in a quantity that equals or exceeds its RQ must 
immediately notify the NRC of the release. A release is reportable if 
an RQ or more is released into the environment within a 24-hour period 
(see 40 CFR 302.6). This reporting requirement serves as a trigger for 
informing the Federal government of a release so that Federal personnel 
can evaluate the need for a response in accordance with the National 
Contingency Plan (NCP) and undertake any necessary response action in a 
timely fashion.
    The NRC is located at the United States Coast Guard (USCG) 
headquarters and is the national communications center for the receipt 
of all pollution incidents reporting. The NRC is continuously manned 
for processing activities related to receipt of the notifications. NCP 
regulations, 40 CFR 300.125, require that notifications of discharges 
and releases be made telephonically and state that the NRC will 
immediately relay telephone notices of discharges (i.e., oil) or 
releases (i.e., hazardous substances) to the appropriate predesignated 
federal on-scene coordinator (OSC). The NRC receives an average of 
approximately 34,000 \2\ notifications per year. Of those 
notifications, averages of approximately 33,700 \3\ discharge or 
release notifications are relayed to EPA.
---------------------------------------------------------------------------

    \2\ Average number of notifications from years 2000-2006, 
National Response Center statistics available at, http://
www.nrc.uscg.mil/incident97-02.html. See Superfund Docket EPA-HQ-
SFUND-2007-0469 for a summary table.
    \3\ Average number of notifications made to EPA from years 2000-
2006, National Response Center statistics available at, http://
www.nrc.uscg.mil/epa97-02.html. The average was calculated from 
those notifications that went to the EPA Regions 1 through 10, 
including notifications to the EPA Regions for Continuous Releases. 
See Superfund Docket EPA-HQ-SFUND-2007-0469 for a summary table.
---------------------------------------------------------------------------

    Under EPCRA section 304(a), three release scenarios require 
notification.
     First, if a release of an extremely hazardous substance 
occurs from a facility at which a hazardous chemical is produced, used, 
or stored, and such release requires a notification under section 
103(a) of CERCLA, the owner or operator of a facility shall immediately 
provide notice to the community emergency coordinator for the local 
emergency planning committees (LEPC) for any area likely to be affected 
by the release and to the State emergency planning commission (SERC) of 
any State likely to be affected by the release. (EPCRA section 
304(a)(1))
     EPCRA section 304(a) also requires the owner or operator 
of the facility to immediately provide notice under EPCRA section 
304(b) for either of the following two scenarios:
    [cir] If the release is an extremely hazardous substance, but not 
subject to the notifications under section 103(a) of CERCLA. (EPCRA 
section 304(a)(2))
    [cir] If the release is not an extremely hazardous substance and 
only subject to the notifications under section 103(a) of CERCLA. 
(EPCRA section 304(a)(3))
    EPCRA notification is to be given to the community emergency 
coordinator for each LEPC for any area likely to be affected by the 
release, and the SERC of any state likely to be affected by the 
release. Through this notification, state and local officials can 
assess whether a response action to the release is appropriate. EPCRA 
section 304 notification requirements apply only to releases that have 
the potential for off-site exposure and that are from facilities that 
produce, use, or store a ``hazardous chemical,'' as defined by 
regulations promulgated under the Occupational Safety and Health Act of 
1970 (OSHA) (29 CFR 1910.1200(c)) and by section 311 of EPCRA.
    In establishing the RQs for the various hazardous substances, EPA 
adjusted the statutory RQs of CERCLA hazardous substances based on 
specific scientific and technical criteria that relate to the 
possibility of harm from the release of a hazardous substance in a 
reportable quantity. (See 50 FR 13456, April 4, 1985.) The adjusted RQs 
did not reflect the determination that a release of a substance will be 
hazardous at the RQ level and not hazardous below that level. EPA did 
not, at the time, make such a determination because the actual hazard 
will vary with the unique circumstances of the release. Instead, the 
RQs reflect the Agency's judgment of which releases should trigger 
notification to the federal government so that the government may 
assess to what extent, if any, a federal removal or remedial action may 
be necessary. (See 50 FR 13465.)
    For the purposes of making RQ adjustments under CERCLA, EPA adopted 
the five RQ levels of 1, 10, 100, 1000, and 5000 pounds originally 
established pursuant to CWA section 311 (see 40 CFR part 117). The 
Agency adopted the five-level system primarily because: (1) It has been 
successfully used pursuant to the CWA, (2) the regulated community was 
familiar with these five levels, and (3) it provided a relatively high 
degree of discrimination among the potential hazards posed by different 
CERCLA hazardous substances.
    The methodology used for adjusting RQs begins with an evaluation of 
the intrinsic physical, chemical, and toxicological properties of each 
designated hazardous substance. The intrinsic properties examined--
called ``primary criteria''--are aquatic toxicity, mammalian toxicity 
(oral, dermal, and inhalation), ignitability, reactivity, and chronic 
toxicity.\4\ In addition, substances that were identified as potential 
carcinogens were evaluated for their relative activity as potential 
carcinogens.
---------------------------------------------------------------------------

    \4\ Chronic toxicity was defined as toxicity resulting from 
repeated or continuous exposure to either a single release or 
multiple releases of a hazardous substance.
---------------------------------------------------------------------------

    The Agency ranks each intrinsic physical, chemical, and 
toxicological property on a five-tier scale, associating a specific 
range of values on each scale with a particular RQ value. Thus, each 
substance receives several tentative RQ values based on its particular 
properties. For example, ammonia received a tentative RQ of 100 pounds 
based on its aquatic toxicity levels; however, for the intrinsic 
property, mammalian toxicity (inhalation), ammonia received a tentative 
RQ value of 1000 pounds. The lowest of all of the tentative RQs for

[[Page 73703]]

each hazardous substance becomes the ``primary criteria RQ'' for that 
substance. After the primary criteria RQs are assigned, substances are 
further evaluated for their susceptibility to certain extrinsic 
degradation processes. These ``secondary criteria'' are biodegradation, 
hydrolysis, and photolysis, or ``BHP.'' If the hazardous substance 
degrades relatively rapidly to a less harmful compound through one or 
more of these processes when it is released into the environment, the 
primary criteria RQ is raised one level. The single RQ assigned to each 
hazardous substance on the basis of the primary criteria and BHP 
becomes the adjusted RQ for that substance.
    The single RQ approach was adopted to provide a relatively simple 
reporting system that does not unduly burden either EPA or the 
regulated community. Since releases into more than one medium often 
occur, the single RQ approach prevents confusion. Section 102(a) of 
CERCLA expressly authorizes the Administrator to set a single quantity 
for each hazardous substance, and the legislative history emphasizes 
the virtues of simplicity and administrative convenience. (For a more 
detailed discussion of the methodology that was used to establish the 
RQs for hazardous substances, see 50 FR 13465, Apr. 4, 1985.)
    Owners and operators of farms, like all other facilities, are 
required to report the release of hazardous substances into the 
environment \5\ in accordance with CERCLA section 103 and EPCRA section 
304 when it meets or exceeds the RQ of the hazardous substance. For 
example, releases into the environment of ammonia or any other 
hazardous substance, from tanks located on a farm, at or above an RQ 
are reportable under CERCLA section 103 and EPCRA section 304.
---------------------------------------------------------------------------

    \5\ Environment means, ``(A) the navigable waters, the waters of 
the contiguous zone, and the ocean waters for which the natural 
resources are under the exclusive management authority of the United 
States * * *, and (B) any other surface water, ground water, 
drinking water supply, land surface or subsurface strata, or ambient 
air within the United States or under the jurisdiction of the United 
States.'' See CERCLA section 101(8).
---------------------------------------------------------------------------

    In 2005, EPA received a petition from the National Chicken Council, 
National Turkey Federation, and U.S. Poultry & Egg Association, seeking 
an exemption from CERCLA and EPCRA reporting requirements for ammonia 
emissions from poultry operations. The Agency published a notice in the 
Federal Register on December 27, 2005 (70 FR 76452) that acknowledged 
receipt of the petition and requested public comment. The comment 
period closed on March 27, 2006.
    Also, in 2005, EPA offered the owners and operators of animal 
agricultural operations an opportunity to sign up for an air monitoring 
study. The purpose of the air monitoring study is to develop emissions 
estimating methodologies for all animal agricultural operations.\6\ 
Over 2600 animal feeding operations, representing over 14,000 farms, 
signed up for the study. The monitoring study which began in the spring 
of 2007 includes 25 representative sites (lagoons or barns) on 21 
different farms in 10 states (NC, NY, IA, WI, CA, KY, TX, WA, IN, and 
OK). The sites will be monitored for two years, allowing the Agency to 
account for emissions variability by season, and for the effect of any 
seasonal operational changes (such as pumping out lagoons), that could 
have an effect on emission levels. At the end of the monitoring study, 
EPA will use the data along with any other relevant, available data to 
develop emissions estimating methodologies. The monitoring study 
results will be publicly available upon completion of the study. In 
addition, EPA will publish the emissions estimating methodologies based 
on these results, within 18 months of the study's conclusion. Thus, 
such information will be widely available to the public.
---------------------------------------------------------------------------

    \6\ The National Academy of Sciences, Board on Agriculture and 
Natural Resources appointed a 16-person ad hoc committee, the 
Committee on Air Emissions from Animal Feeding Operations, to 
evaluate the scientific information needed to address issues raised 
by EPA regarding CAA regulation of air emissions from animal feeding 
operations (AFOs) and the U.S. Department of Agriculture aid to 
farmers in mitigating the effects of air emissions with modified 
agricultural practices. One of the findings of that Committee was, 
in part, direct measurements of air emissions at all AFOs are not 
feasible. Nevertheless, measurements on a statistically 
representative subset of AFOs are needed.
---------------------------------------------------------------------------

III. Summary of This Action

A. What Is the Scope of This Proposed Rule?

    The scope of this proposed rule is limited to releases of hazardous 
substances to the air from animal waste at farms. Specifically, the 
Agency is proposing an administrative reporting exemption from the 
CERCLA section 103 and EPCRA section 304 notification requirements as 
implemented in 40 CFR 302.6 and 302.8 and 40 CFR 355.40, respectively. 
The scope of this proposed rule is intended to include all hazardous 
substances that may be emitted to the air from animal waste at farms. 
(See Section I.D. for further discussion of which hazardous substances 
we are proposing to include within the administrative reporting 
exemption.)

B. Proposed Definitions

    In proposing this rule, the Agency believes it is important to 
provide clarity with respect to the scope of the proposed reporting 
exemption. Therefore, the Agency is proposing definitions for animal 
waste and farm (to be added to the Code of Federal Regulations) that 
only pertains to regulations promulgated pursuant to CERCLA section 103 
and EPCRA section 304, specifically 40 CFR 302.3 (definitions) and 40 
CFR 355.20 (definitions).
    Animal Waste--means manure (feces, urine, other excrement, and 
bedding, produced by livestock that has not been composted), digestive 
emissions, and urea. The definition includes animal waste when mixed or 
commingled with bedding, compost, feed, soil and other materials 
typically found with animal waste.
    The Agency is not aware of any existing definition for animal waste 
and thus, seeks comment from the public on the appropriateness, clarity 
and completeness of this definition.
    The Agency also is limiting the proposed reporting exemption to 
animal waste that is generated on farms, and is proposing a specific 
definition for farm under this proposal. For this proposed exemption 
only, EPA defines farm, by using the definition found in the National 
Agricultural Statistics Service (NASS) Census of Agriculture, and 
adopting it. Also, the Agency recognizes that Federal and state 
research farms utilizing farm animals are subject to the conditions 
experienced on other farms; therefore, EPA proposes to include Federal 
and state poultry, swine, dairy and livestock research farms.
    Farm--means (a.) any place whose operation is agricultural and from 
which $1,000 or more of agricultural products were produced and sold, 
or normally would have been sold, during the census year. Operations 
receiving $1,000 or more in Federal government payments are counted as 
farms, even if they have no sales and otherwise lack the potential to 
have $1,000 or more in sales; or, (b.) a Federal or state poultry, 
swine, dairy or livestock research farm.
    EPA seeks comment on the proposed definition for a farm, and 
whether an alternative definition may be more appropriate. In addition, 
the Agency is aware that animal waste also is generated at other 
facilities, such as zoos and circuses. Because the focus of this 
proposal is on animal waste generated or found at farms, we are not 
proposing to expand the reporting

[[Page 73704]]

exemption beyond such facilities. However, the Agency requests comment 
on whether the reporting exemption should be expanded to other types of 
facilities that also generate animal waste, and if so, what other types 
of facilities should be included in the reporting exemption. Any 
alternative approaches presented must include an appropriate rationale 
and supporting data in order for the Agency to be able to consider them 
for final action.

C. What Is Not Included Within the Scope of This Proposed Rule?

    As noted previously, this administrative reporting exemption is 
limited in scope to those releases of hazardous substances to the air 
from animal waste at farms. EPA is not proposing to exempt from CERCLA 
section 103 or EPCRA section 304 notification requirements for releases 
of hazardous substances from animal waste to any other environmental 
media or at any other facilities other than farms (i.e., meat 
processing plants, slaughter houses, tanneries). In addition, EPA is 
not proposing to exempt from CERCLA section 103 or EPCRA section 304 
notification requirements of any release of hazardous substances to the 
air from any source other than animal waste at farms.
    The Agency believes that there could be releases to the air from 
other sources of hazardous substances at farms where an emergency 
response to that release may be possible. For example, EPA is not 
proposing to exempt ammonia releases from ammonia storage tanks at 
farms. In addition, notification of a release of a hazardous substance, 
which meets or exceeds its RQ, from animal waste to any environmental 
media (other than air) is still required under this proposal. Thus, 
notification that there was a release of a hazardous substance that 
meets or exceeds the RQ where stored animal waste is released into 
water (i.e., a lagoon burst) would still be required under this 
proposal. Such notifications would alert the government to an emergency 
situation that could pose serious environmental consequences if not 
immediately addressed. Hence, those releases to the environment would 
still be reportable at or above their RQ as they are more likely to 
result in a response action from Federal, state or local governments.
    No EPCRA statutory requirements, other than the emergency hazardous 
substance notification requirements under EPCRA section 304, are 
included within this proposal. The proposal does not limit the Agency's 
authority under CERCLA sections 104 (response authorities), 106 
(abatement actions), 107 (liability), or any other provisions of CERCLA 
and EPCRA to address releases of hazardous substances from animal waste 
at farms.

D. What Is EPA's Rationale for This Administrative Reporting Exemption?

    EPA's rationale for this administrative reporting exemption is 
based on the purpose of notifying the NRC, and SERCs and LEPCs when a 
hazardous substance is released, and then the likelihood that a 
response to that release would be taken by any government agency.
    Upon receipt of a notification from the NRC, EPA determines whether 
a response is appropriate. See 40 CFR 300.130(c). If it is determined 
that a response is appropriate, the NCP regulations describe the roles 
and responsibilities for responding to the release. Thus, the question 
that EPA considered is whether the Agency would ever take a response 
action, as a result of such notification, for releases of hazardous 
substances to the air from animal waste at farms. We believe not and, 
thus, are proposing to no longer require such reporting. This 
conclusion is based in part on EPA's experience.\7\ Specifically, to 
date, EPA has not initiated a response to any NRC notifications of 
ammonia, hydrogen sulfide, or any other hazardous substances released 
to the air where animal waste at farms is the source of that release. 
Moreover, we cannot foresee a situation where the Agency would take any 
future response action as a result of such notification of releases of 
hazardous substances from animal waste at farms because in all 
instances the source (animal waste) and nature (to the air over a broad 
area) are such that on-going releases makes an emergency response 
unnecessary, impractical and unlikely. Typically, if a response is 
taken as a result of a release notification, the government may require 
monitoring or make recommendations to local officials regarding 
evacuations and shelter-in-place. While this may be an appropriate 
response to hazardous substances releases from tanks, pipes, vents or 
in train derailment situations where the emergency may result in acute 
exposures, the Agency does not believe that this is a necessary or 
appropriate response to the release of hazardous substances to the air 
from animal waste at farms.
---------------------------------------------------------------------------

    \7\ Notifications must still be made when and if hazardous 
substances are released to the air at farms from any other source 
(other than animal waste), as well as releases of any hazardous 
substances from animal waste to any other environmental media (i.e., 
soil, groundwater and surface water).
---------------------------------------------------------------------------

    Several states have indicated that such response actions are 
unlikely to be taken as a result of a notification of releases of 
hazardous substances from animal waste at farms. EPA received 26 
comment letters from state and/or local emergency response agencies in 
its request for public comment on the 2005 petition from the National 
Chicken Council, National Turkey Federation, and U.S. Poultry & Egg 
Association (``poultry petition''). All of those commenters supported 
granting the poultry petition--that is, exempting from CERCLA and EPCRA 
reporting requirements for ammonia emissions from poultry operations. 
Generally, those agencies supported the petition because they are aware 
of the operations in their jurisdictions, were concerned about the 
resource implications of receiving the notifications (i.e., having to 
process the notifications), and would not conduct an emergency response 
as a result of the notifications. Thus, the comments received from 
state and/or local emergency response agencies is consistent with EPA's 
view.
    Furthermore, the Agency does not need to receive such notifications 
in order to enforce applicable CWA, CAA, RCRA, and/or other applicable 
CERCLA and EPCRA regulations at farms. EPA still retains those 
enforcement authorities to address threats to human health and the 
environment.
    We estimate that the private sector, state and local, and the 
Federal governments spend approximately three hours per release to 
prepare and process episodic notifications and 24.5 hours to process 
continuous release notifications.\8\
---------------------------------------------------------------------------

    \8\ For episodic releases, this estimate was calculated using 
the burden hours described in the Information Collection Requests 
1049.10 and 1395.06 for episodic releases of hazardous substances to 
the NRC and emergency notifications to SERCs and LEPCs. For 
continuous releases, this estimate was calculated using the burden 
hours described in the Information Collection Request 1445.06 for 
continuous release reporting requirements. Supporting statements for 
both information collection requests are available in the Superfund 
Docket, EPA-HQ-SFUND-2007-0469.
---------------------------------------------------------------------------

    Based on these reasons, the Agency believes it is appropriate to 
propose to eliminate the reporting requirement under CERCLA section 103 
and EPCRA section 304 for hazardous substances released to the air at 
farms where the source of those hazardous substances is animal waste. 
Nevertheless, the Agency solicits comments on whether there might be a 
situation where a response would be triggered by such a notification of 
the release of hazardous substances to the air from animal waste

[[Page 73705]]

at farms, and if so, what an appropriate response would be. Any 
comments that would support such an action should include an 
appropriate rationale in order for the Agency to be able to consider it 
for final action.

E. What Are the Economic Impacts of This Administrative Reporting 
Exemption?

    This proposed administrative reporting exemption will reduce the 
costs of complying with CERCLA section 103 and EPCRA section 304 for 
those farms that release hazardous substances to air from animal waste. 
Entities that are expected to experience a reduction in burden and cost 
include both the farms that are no longer required to report those 
releases, as well as the Federal, state and local governments 
responsible for receiving the reports. The economic analysis completed 
for this proposed rule is available in the docket for this rulemaking 
and is based on the underlying economic analyses that were completed 
for the regulations that established the notification requirements.\9\ 
We estimate that this proposed rule will reduce burden on farms 
associated with making notifications under CERCLA section 103 and EPCRA 
section 304 by approximately 3,432,000 hours over the ten year period 
beginning in 2009 and associated costs by approximately $160,173,000 
over the same period. We estimate that this proposed rule will also 
reduce burden on Federal, State and local governments responsible for 
receiving and processing the notifications under CERCLA section 103 and 
EPCRA section 304 by approximately 161,000 hours over the ten year 
period beginning in 2009 and associated costs by approximately 
$8,109,000 over the same period. In evaluating the potential burden and 
cost savings to those farms that would no longer be required to make 
notifications under CERCLA section 103 and EPCRA section 304 and the 
government entities that are no longer required to receive and process 
such notifications, we used the same universe as used in the 2003 CAFO 
Rule (see 68 FR 7176, Feb 12, 2003). We also assumed that over the ten 
year period (2009-2018) that there would be a declining number of 
CAFOs; however, some of those operations would increase in size.
---------------------------------------------------------------------------

    \9\ The following documents are available in the Superfund 
Docket, EPA-HQ-SFUND-2007-00469: Regulatory Impact Analysis of 
Reportable Quantity Adjustments Under Sections 102 and 103 of the 
Comprehensive Environmental Response, Compensation, and Liability 
Act, Volume 1 (March 1985); Regulatory Impact Analysis in Support of 
Rulemaking Under Sections 302, 303, and 304 of Title III of the 
Superfund Amendments and Reauthorization Act of 1986 (April 1987); 
and Economic Analysis in Support of the Continuous Release Reporting 
Regulation Under Section 103(f)(2) of the Comprehensive 
Environmental Response, Compensation, and Liability Act (April 
1990).
---------------------------------------------------------------------------

IV. Statutory and Regulatory Reviews

A. Executive Order 12866 (Regulatory Planning and Review)

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action.'' The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may: (1) Have an annual effect on the economy of $100 million 
or more or adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this proposed rule is a ``significant regulatory 
action'' because it raises novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the Executive Order. Accordingly, EPA submitted this proposed rule 
to the Office of Management and Budget (OMB) for review and any changes 
made in response to OMB recommendations have been documented in the 
docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
Rather, this proposed rule represents a reduction in burden for both 
industry and the government by administratively exempting the reporting 
requirement for releases of hazardous substances to the air from animal 
waste at farms. OMB has previously approved the information collection 
requirements contained in the existing regulations 40 CFR part 302 and 
40 CFR part 355 under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501, et seq. and has assigned OMB control number 2050-0046, EPA 
ICR number 1049.10 for 40 CFR 302.6 (Episodic releases of oil and 
hazardous substances), OMB control number 2050-0086, EPA ICR number 
1445.06 for 40 CFR 302.8 (Continuous release reporting requirements) 
and OMB control number 2050-0092, EPA ICR number 1395.06 for 40 CFR 355 
(Emergency planning and notification). A copy of the OMB approved 
Information Collection Request (ICR) may be obtained by writing to: 
Director, Collection Strategies Division; U.S. Environmental Protection 
Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by 
calling (202) 566-1700.
    EPA ICR number 1049.10 covers collection requirements for 
notification of episodic releases of oil and hazardous substances; EPA 
ICR number 1445.06 covers collection requirements for the continuous 
release reporting requirements; and EPA ICR number 1395.06 covers 
collection requirements for the notification requirements for releases 
of hazardous substances and extremely hazardous substances to both 
SERCs and LEPCs. Each of these information collections are affected by 
this proposed rule. However, this proposed rule represents a reduction 
in the burden for both industry and the government through an 
administrative reporting exemption from those reporting requirements.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies

[[Page 73706]]

that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    This rulemaking will relieve regulatory burden because we propose 
to eliminate the reporting requirement for releases of hazardous 
substances to the air from animal waste at farms. We expect the net 
reporting and recordkeeping burden associated with reporting air 
releases of hazardous substances from animal waste at farms under 
CERCLA section 103 and EPCRA section 304 to decrease. This reduction in 
burden will be realized by small and large businesses. We have 
therefore concluded that this proposed rule will relieve regulatory 
burden for all affected small entities.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for state, local, or 
tribal governments or the private sector. That is, the proposal imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector; rather, this proposed rule will result in burden 
reduction in the receipt of notifications of the release to the air of 
hazardous substances, primarily ammonia and hydrogen sulfide, from 
animal waste at farms.
    Additionally, EPA has determined that this proposed rule contains 
no regulatory requirements that might significantly or uniquely affect 
small governments. This proposed rule reduces regulatory burden and the 
private sector is not expected to incur costs exceeding $100 million. 
Thus, the proposal is not subject to the requirements of Sections 202 
and 205 of UMRA.

E. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. There are no state and local 
government bodies that incur direct compliance costs by this proposed 
rulemaking. Thus, Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and state and local 
governments, EPA specifically solicits comment on this proposed rule 
from state and local officials.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. This 
proposed rule does not significantly or uniquely affect the communities 
of Indian tribal governments, nor would it impose substantial direct 
compliance costs on them. Thus, Executive Order 13175 does not apply to 
this rule.

G. Executive Order 13045 (Protection of Children From Environmental 
Health Risks and Safety Risks)

    The Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997) applies to any rule that: (1) Is determined to be ``economically

[[Page 73707]]

significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in Executive Order 12866.

H. Executive Order 13211 (Energy Effects)

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This proposed 
rule will reduce the burden associated with the notification of 
releases to air of hazardous substances from animal waste at farms.

I. National Technology Transfer and Advancement Act of 1995 (``NTTAA'')

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations)

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. As discussed in the Background section of the preamble for 
this proposed rule, the adjusted RQs do not reflect the determination 
that a release of a substance will be hazardous at the RQ level and not 
hazardous below that level. Instead, the RQs reflect the Agency's 
judgment of which releases should trigger notification to the federal 
government so that the government may assess to what extent, if any, a 
federal removal or remedial action may be necessary. In addition, the 
requirement to notify the government under CERCLA section 103 and EPCRA 
section 304 does not require the notifying entity to take any specific 
action to address the release. Therefore because the notification is 
not specifically designed to protect human health or the environment 
and EPA has determined that a response action would be unlikely, EPA 
does not believe that exempting these releases from CERCLA section 103 
and EPCRA section 304 notification requirements will have a 
disproportionately high and adverse human health or environmental 
effect on minority or low-income populations.
    This proposed rule addresses information collection requirements 
for CERCLA section 103 and EPCRA section 304. No EPCRA programs, other 
than the emergency notification program under EPCRA section 304, are 
included in this proposal and the Agency is not proposing to limit 
CERCLA sections 104 (response authorities), 106 (abatement actions), 
107 (liability), or any other provisions of CERCLA through this 
proposed rulemaking. The Agency also retains its authority to apply 
existing statutory provisions in its efforts to prevent minority and or 
low-income communities from being subject to disproportionately high 
and adverse impacts and environmental effects. We therefore have 
determined that this proposal does not have a disproportionately high 
and adverse human health or environmental effects on minority or low-
income populations.

List of Subjects

40 CFR Part 302

    Air pollution control, Chemicals, Hazardous substances, Hazardous 
waste, Intergovernmental relations, Natural resources, Reporting and 
recordkeeping requirements, Superfund, Water pollution control, Water 
supply.

40 CFR Part 355

    Air pollution control, Chemicals, Disaster assistance, Hazardous 
substances, Hazardous waste, Intergovernmental relations, Natural 
resources, Penalties, Reporting and recordkeeping requirements, 
Superfund, Water pollution control, Water supply.

    Dated: December 20, 2007.
Stephen L. Johnson,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

    1. The authority citation for part 302 continues to read as 
follows:

    Authority: 42 U.S.C. 9602, 9603, 9604; 33 U.S.C. 1321 and 1361.

    2. Section 302.3 is amended by adding in alphabetical order the 
definitions of ``Animal waste'' and ``Farm'' to read as follows:


Sec.  302.3  Definitions.

* * * * *
    Animal Waste means manure (feces, urine, other excrement, and 
bedding, produced by livestock that has not been composted), digestive 
emissions, and urea. The definition includes animal waste when mixed or 
commingled with bedding, compost, feed, soil and other typical 
materials found with animal waste.
* * * * *
    Farm means:
    (1) Any place whose operation is agricultural and from which $1,000 
or more of agricultural products were produced and sold, or normally 
would have been sold, during the census year. Operations receiving 
$1,000 or more in Federal government payments are counted as farms, 
even if they have no sales and otherwise lack the potential to have 
$1,000 or more in sales; or
    (2) A Federal or state poultry, swine, dairy or livestock research 
farm.
* * * * *
    3. Section 302.6 is amended by adding paragraph (e)(3) to read as 
follows:

[[Page 73708]]

Sec.  302.6  Notification requirements.

* * * * *
    (e) * * *
    (3) Releases to the air of any hazardous substance from animal 
waste at farms.
* * * * *

PART 355--EMERGENCY PLANNING AND NOTIFICATION

    4. The authority citation for part 355 continues to read as 
follows:

    Authority: 42 U.S.C. 11002, 11004, and 11048.

    5. Section 355.20 is amended by adding in alphabetical order the 
definitions of ``Animal waste'' and ``Farm'' to read as follows:


Sec.  355.20  Definitions.

* * * * *
    Animal Waste as used in Sec.  355.40 only, animal waste means 
manure (feces, urine, other excrement, and bedding, produced by 
livestock that has not been composted), digestive emissions, and urea. 
The definition includes animal waste when mixed or commingled with 
bedding, compost, feed, soil and other typical materials found with 
animal waste.
* * * * *
    Farm as used in Sec.  355.40 only, farm means:
    (1) Any place whose operation is agricultural and from which $1,000 
or more of agricultural products were produced and sold, or normally 
would have been sold, during the census year. Operations receiving 
$1,000 or more in Federal government payments are counted as farms, 
even if they have no sales and otherwise lack the potential to have 
$1,000 or more in sales; or
    (2) A Federal or state poultry, swine, dairy or livestock research 
farm.
* * * * *
    6. Section 355.40 is amended by adding paragraph (a)(2)(viii) to 
read as follows:


Sec.  355.40  Emergency release notification.

    (a) * * *
    (2) * * *
    (viii) Any release to the air of a hazardous substance from animal 
waste at farms.
* * * * *
 [FR Doc. E7-25231 Filed 12-27-07; 8:45 am]
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