Amendment to Emergency Release Notification Regulations on Reporting Exemption for Air Emissions From Animal Waste at Farms; Emergency Planning and Community Right-to-Know Act, 27533-27542 [2019-12411]
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Federal Register / Vol. 84, No. 114 / Thursday, June 13, 2019 / Rules and Regulations
effect 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. We have
analyzed this rule under that Order and
have determined that it is consistent
with the fundamental federalism
principles and preemption requirements
described in Executive Order 13132.
Also, this rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes. If you
believe this rule has implications for
federalism or Indian tribes, please
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section.
E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
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F. Environment
We have analyzed this rule under
Department of Homeland Security
Directive 023–01 and Environmental
Planning COMDTINST 5090.1 (series),
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321–4370f), and have
determined that this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves a safety
zone lasting 2.5 hours that will prohibit
entry within a portion of the Upper
Potomac River, including the Tidal
Basin, in Washington, DC. It is
categorically excluded from further
review under paragraph L60(a) in Table
3–1 of U.S. Coast Guard Environmental
Planning Implementing Procedures
5090.1. A Record of Environmental
Consideration supporting this
determination is available in the docket
where indicated under ADDRESSES.
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G. Protest Activities
The Coast Guard respects the First
Amendment rights of protesters.
Protesters are asked to contact the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 46 U.S.C. 70034, 70051; 33 CFR
1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 0170.1.
27533
(2) To seek permission to enter,
contact the COTP or the COTP’s
designated representative by telephone
at 410–576–2693 or on Marine Band
Radio VHF–FM channel 16 (156.8
MHz). The Coast Guard vessels
enforcing this section can be contacted
on Marine Band Radio VHF–FM
channel 16 (156.8 MHz).
(3) Those in the safety zone must
comply with all lawful orders or
directions given to them by the COTP or
the COTP’s designated representative.
(d) Enforcement officials. The U.S.
Coast Guard may be assisted in the
patrol and enforcement of the safety
zone by Federal, State, and local
agencies.
(e) Enforcement period. This section
will be enforced from 8 p.m. to 10:30
p.m. on July 4, 2019, or if necessary due
to inclement weather, from 8 p.m. to
10:30 p.m. on July 5, 2019.
Dated: June 10, 2019.
Joseph B. Loring,
Captain, U.S. Coast Guard, Captain of the
Port Maryland-National Capital Region.
[FR Doc. 2019–12508 Filed 6–12–19; 8:45 am]
BILLING CODE 9110–04–P
2. Add § 165.T05–0221 to read as
follows:
■
§ 165.T05–0221 Safety Zone for Fireworks
Display; Upper Potomac River, Washington,
DC.
(a) Location. The following area is a
safety zone: All navigable waters of the
Upper Potomac River, including the
Tidal Basin, within 1,000 feet of the
fireworks discharge site at West
Potomac Park in approximate position
latitude 38°53′07.1″ N, longitude
077°02′49.5″ W, located at Washington,
DC. All coordinates refer to datum NAD
1983.
(b) Definitions. As used in this
section:
(1) Captain of the Port (COTP) means
the Commander, U.S. Coast Guard
Sector Maryland-National Capital
Region.
(2) Designated representative means
any Coast Guard commissioned,
warrant, or petty officer who has been
authorized by the Captain of the Port
Maryland-National Capital Region to
assist in enforcing the safety zone
described in paragraph (a) of this
section.
(c) Regulations. (1) Under the general
safety zone regulations in subpart C of
this part, you may not enter the safety
zone described in paragraph (a) of this
section unless authorized by the COTP
or the COTP’s designated representative.
All vessels underway within this safety
zone at the time it is activated are to
depart the zone.
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 355
[EPA–HQ–OLEM–2018–0318; FRL–9995–
03–OLEM]
RIN 2050–AH00
Amendment to Emergency Release
Notification Regulations on Reporting
Exemption for Air Emissions From
Animal Waste at Farms; Emergency
Planning and Community Right-toKnow Act
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA or the Agency) is
amending the release notification
regulations under the Emergency
Planning and Community Right-toKnow Act (EPCRA) to add the reporting
exemption for air emissions from animal
waste at farms provided in section
103(e) of the Comprehensive
Environmental Response, Compensation
and Liability Act (CERCLA). In addition,
EPA is adding definitions of ‘‘animal
waste’’ and ‘‘farm’’ to the EPCRA
regulations to delineate the scope of this
reporting exemption. This amendment
maintains consistency between the
emergency release notification
requirements of EPCRA and CERCLA in
SUMMARY:
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accordance with the statutory text,
framework and legislative history of
EPCRA, and is consistent with the
Agency’s prior regulatory actions.
DATES: This final rule is effective July
15, 2019.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OLEM–2018–0318. All
documents in the docket are listed on
the https://www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
Sicy
Jacob, United States Environmental
Protection Agency, Office of Land and
FOR FURTHER INFORMATION CONTACT:
Emergency Management, 1200
Pennsylvania Ave. NW, (Mail Code
5104A), Washington, DC 20460;
telephone number: (202) 564–8019;
email address: jacob.sicy@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
A list of entities that could be affected
by this final rule include, but are not
necessarily limited to:
Type of entity
Examples of affected entities
Industry ..........................................................
NAICS code 111—Crop production.
NAICS code 112—Animal production.
NAICS code 999200—State Government, excluding schools and hospitals.
NAICS code 999300—Local Government, excluding schools and hospitals.
State Emergency Response Commissions, Tribal Emergency Response Commissions, Tribal
Emergency Planning Committees and Local Emergency Planning Committees.
States and/or Local Governments ................
This table is not intended to be
exhaustive, but rather provide a guide
for readers regarding the types of
entities that EPA is aware could be
involved in the activities affected by
this action. However, other types of
entities not listed in this table could be
affected by this final rule. To determine
whether your entity is affected by this
action, you should carefully examine
the applicability criteria found in
§ 355.30 of title 40 of the Code of
Federal Regulations (CFR). If you have
questions regarding the applicability of
this action to a particular entity, consult
the person listed in the FOR FURTHER
INFORMATION CONTACT section.
B. What action is the Agency taking?
The EPA is amending the EPCRA
emergency release notification
regulations to include the reporting
exemption for air emissions from animal
waste at farms provided in CERCLA
section 103(e). In addition, EPA is
adding definitions of ‘‘animal waste’’
and ‘‘farm’’ to the EPCRA regulations to
delineate the scope of this reporting
exemption.
C. What is the Agency’s authority for
taking this action?
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e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available electronically through https://
www.regulations.gov.
This final rule is being issued under
EPCRA, which was enacted as Title III
of the Superfund Amendments and
Reauthorization Act (SARA) of 1986
(Pub. L. 99–499). EPA finalizes this
action under the authority of EPCRA
section 304 (42 U.S.C. 11004) and the
Agency’s general rulemaking authority
under EPCRA section 328 (42 U.S.C.
11048).
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D. What is the background of this final
rule?
Section 103 of CERCLA requires the
person in charge of a vessel or facility
to immediately notify the National
Response Center (NRC) when there is a
release of a hazardous substance, as
defined under CERCLA section 101(14),
in an amount equal to or greater than
the reportable quantity for that
substance within a 24-hour period. In
addition to these CERCLA reporting
requirements, EPCRA section 304
requires owners or operators of certain
facilities to immediately notify state and
local authorities when there is a release
of an extremely hazardous substance
(EHS), as defined under EPCRA section
302, or of a CERCLA hazardous
substance in an amount equal to or
greater than the reportable quantity for
that substance within a 24-hour period.
EPCRA and CERCLA are two separate
but interrelated environmental laws that
work together to provide emergency
release notifications to Federal, state
and local officials. Notice given to the
NRC under CERCLA serves to inform
the Federal government of a release so
that Federal personnel can evaluate the
need for a response in accordance with
the National Oil and Hazardous
Substances Contingency Plan (NCP),1
the Federal government’s framework for
responding to both oil discharges and
hazardous substance releases. Relatedly,
notice under EPCRA is given to the
State Emergency Response Commission
(SERC) for any state likely to be affected
by the release and to the community
emergency coordinator for the Local
Emergency Planning Committee (LEPC)
1 40
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2 In this document, emergency release notification
and release reporting are used interchangeably.
CFR part 300.
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for any area likely to be affected by the
release so that state and local authorities
have information to help protect the
community.
Release reporting under EPCRA
depends, in part, on whether reporting
is required under CERCLA.2
Specifically, EPCRA section 304(a)
provides for reporting under the
following three release scenarios:
• EPCRA section 304(a)(1) requires
notification if a release of an EPCRA
EHS occurs from a facility at which a
hazardous chemical is produced, used
or stored, and such release requires a
notification under CERCLA section
103(a).
• EPCRA section 304(a)(2) requires
notification if a release of an EPCRA
EHS occurs from a facility at which a
hazardous chemical is produced, used
or stored, and such release is not subject
to the notification requirements under
CERCLA section 103(a), but only if the
release:
Æ Is not a federally permitted release
as defined in CERCLA section 101(10),
Æ Is in an amount in excess of the
reportable quantity as determined by
EPA, and
Æ Occurs in a manner that would
require notification under CERCLA
section 103(a).
• EPCRA section 304(a)(3) requires
notification if a release of a substance
not designated as an EPCRA EHS occurs
from a facility at which a hazardous
chemical is produced, used or stored,
and such release requires a notification
under CERCLA section 103(a).
On March 23, 2018, the President
signed into law the Consolidated
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Appropriations Act, 2018 (‘‘Omnibus
Bill’’). Title XI of the Omnibus Bill is
entitled the ‘‘Fair Agricultural Reporting
Method Act’’ or the ‘‘FARM Act.’’ See
Fair Agricultural Reporting Method Act,
Public Law 115–141, sections 1101–
1103 (2018). The FARM Act expressly
exempts reporting of air emissions from
animal waste (including decomposing
animal waste) at a farm from CERCLA
section 103. The FARM Act also
provides definitions for the terms
‘‘animal waste’’ and ‘‘farm.’’
The FARM Act amended CERCLA by
providing an exemption from reporting
air emissions from animal waste at
farms. Because these types of releases
are exempted under CERCLA, based on
the release reporting criteria under
EPCRA section 304, these types of
releases are also exempt under EPCRA
section 304.
Consequently, on November 14, 2018,
EPA published a proposed rule to
amend the release reporting regulations
under EPCRA section 304. The
comment period closed on December
14, 2018. EPA received 87,473
comments, of which 87,091 are mass
mail campaigns opposing the proposed
rule. The remaining were individual
letters that either supported or opposed
the proposed rule. EPA’s response to
significant comments are generally
addressed below in Section V of this
preamble. EPA developed a response to
comment document to address all the
comments received by the Agency on
the proposed rule, which is in the
docket EPA–HQ–OLEM–2018–0318 to
this final rule. In addition, this
rulemaking generally tracks the
guidance document EPA had previously
issued after enactment of the FARM Act.
Thus, EPA formally withdraws the
guidance document entitled, ‘‘How does
the Fair Agricultural Reporting Method
(FARM) Act impact reporting of air
emissions from animal waste under
CERCLA Section 103 and EPCRA
Section 304?’’ dated April 27, 2018.
II. Summary of This Final Rule
This final rule amends the release
reporting regulations under EPCRA
section 304 by adding the reporting
exemption in 40 CFR 355.31 for air
emissions from animal waste at farms,
as proposed. EPA is also adding
definitions of ‘‘animal waste’’ and
‘‘farm’’ to the definition section of the
EPCRA regulations in 40 CFR 355.61 to
delineate the scope of this reporting
exemption, as proposed. EPA believes
this final rule appropriately reflects the
relationship between CERCLA and
EPCRA release reporting requirements
and is consistent with the statutory text,
framework and legislative history of
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EPCRA, as well as the Agency’s prior
regulatory actions.
III. Legal Rationale for This Final Rule
This rulemaking maintains
consistency between the emergency
release notification requirements of
EPCRA and CERCLA in accordance with
the statutory text, framework and
legislative history of EPCRA, and is
consistent with the Agency’s prior
regulatory actions. Specifically, this
rulemaking is based on the relationship
of the EPCRA section 304 reporting
requirements to the CERCLA section
103 reporting requirements, as recently
amended. As previously noted, EPCRA
section 304 reporting depends, in part,
on whether reporting is required under
CERCLA section 103. EPCRA’s
legislative history further indicates that
the EPCRA section 304 reporting
requirements are designed to be
consistent with the reporting
requirements of CERCLA section 103.
EPA has thus revised the EPCRA
emergency release notification
regulations from time to time, as
appropriate, to maintain consistency
with the CERCLA reporting
requirements.
Consistent with the Agency’s
interpretation of EPCRA section 304 and
the Agency’s prior regulatory actions,
EPA is amending the EPCRA release
notification regulations to explicitly
exempt air emissions from animal waste
at farms from reporting under EPCRA
section 304.
A. Statutory Text and Framework
EPCRA section 304 provides for
release reporting under three scenarios,
each of which depends in some way on
whether the release requires notice
under CERCLA. If a release requires
notice under CERCLA section 103(a),
the release may be subject to reporting
under EPCRA if the release meets the
requirements of EPCRA section
304(a)(1) or 304(a)(3). Because the
FARM Act exempted air emissions from
animal waste at farms from CERCLA
reporting, these types of releases no
longer require notice under CERCLA
section 103(a). If a release is not subject
to notification under CERCLA section
103(a), the release may nonetheless be
subject to reporting under EPCRA if the
release meets the requirements of
EPCRA section 304(a)(2). Pursuant to
EPCRA section 304(a)(2), a release of an
EPCRA EHS that is not subject to
notification under section 103(a) of
CERCLA need only be reported under
EPCRA if the release:
• Is not a federally permitted release
as defined in section 101(10) of
CERCLA,
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27535
• Is in an amount in excess of the
reportable quantity as determined by
EPA, and
• Occurs in a manner that would
require notification under section 103(a)
of CERCLA.
A release that is not subject to
CERCLA section 103(a) reporting must
meet all three criteria in EPCRA section
304(a)(2) to be subject to EPCRA
reporting. Here, air emissions from
animal waste at farms could meet the
first two criteria because such releases
are generally not federally permitted
and may exceed the applicable
reportable quantity. Yet these types of
releases do not ‘‘occur[ ] in a manner’’
that would require notification under
CERCLA section 103(a) and thus do not
meet the third criterion of EPCRA
section 304(a)(2). Because air emissions
from animal waste at farms do not meet
all three criteria under EPCRA section
304(a)(2), and do not fall within the
EPCRA section 304(a)(1) or (a)(3)
reporting scenarios, these types of
releases are not subject to EPCRA
reporting. As such, EPA is amending the
EPCRA’s emergency release notification
regulations to clarify reporting
exemptions for certain types of releases
under EPCRA section 304.
Air emissions from animal waste at
farms no longer ‘‘occur[ ] in a manner’’
that would require notification under
CERCLA section 103(a) because the
FARM Act exempted these types of
releases from CERCLA reporting.
Importantly, the CERCLA reporting
exemption is specifically tied to the
nature or manner of these releases rather
than to a specific substance. For
example, the FARM Act amendment
does not exempt specific substances
typically associated with animal waste
(such as ammonia and hydrogen sulfide)
from reporting; rather, it exempts from
reporting releases of any substance from
animal waste at a farm into the air.
Because air emissions from animal
waste do not ‘‘occur[ ] in a manner’’ that
would require notification under
CERCLA section 103(a), these types of
releases do not meet the third criterion
of EPCRA section 304(a)(2) and are thus
not subject to EPCRA reporting.
EPCRA section 304(a)(2) promotes
consistency between the reporting
requirements of EPCRA and CERCLA by
ensuring that only releases that ‘‘occur[ ]
in a manner’’ that would require
CERCLA notification be reported under
EPCRA. Yet, the provision also
contemplates scenarios where releases
not subject to reporting under CERCLA
may still need to be reported under
EPCRA, such as releases of substances
designated as EHSs under EPCRA but
not as hazardous substances under
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CERCLA. For example,
trimethylchlorosilane (Chemical
Abstract Service No. 75–77–4) is
designated as an EPCRA EHS but not as
a CERCLA hazardous substance. Since
trimethylchlorosilane is not a CERCLA
hazardous substance, its releases are not
subject to notification under CERCLA
section 103(a) and need only be
reported under EPCRA if such releases
meet the criteria of EPCRA section
304(a)(2). A trimethylchlorosilane
release that (1) is not a federally
permitted release as defined in CERCLA
section 101(10); (2) exceeds the
applicable reportable quantity; and (3)
‘‘occurs in a manner’’ that would
require notification under CERCLA
section 103(a) would still be subject to
EPCRA reporting. In this example, a
release of trimethylchlorosilane ‘‘occurs
in a manner’’ that would require
notification under CERCLA section
103(a) where it is not one of the
excluded or exempted types of releases
described in CERCLA sections 101(22),
103(e), or 103(f). (See section C of this
preamble, for further explanation of
these exemptions.) The reason the
release is not subject to notification
under CERCLA section 103(a) is because
trimethylchlorosilane is not a CERCLA
hazardous substance, not because there
is anything particular about the release
that renders it exempt.
As another example, petroleum
(including crude oil or any fraction
thereof) is expressly excluded from the
definition of ‘‘hazardous substance’’ in
CERCLA section 101(14). Because of
this ‘‘petroleum exclusion,’’ releases of
petroleum are not subject to notification
under CERCLA section 103(a) and so
need to be reported under EPCRA only
if such releases meet the criteria of
EPCRA section 304(a)(2). Where a
petroleum release meets the first two
criteria of EPCRA section 304(a)(2), the
question becomes whether the release
‘‘occurs in a manner’’ that would
require notification under CERCLA
section 103(a). Notably, unlike air
emissions from animal waste at farms,
Congress did not exempt petroleum
releases from CERCLA reporting based
on the manner or nature of these
releases. Instead, Congress exempted
these types of releases from CERCLA
reporting by excluding petroleum
(including crude oil or any fraction
thereof) from the definition of
‘‘hazardous substance.’’ See 42 U.S.C.
9601(14). As such, these types of
releases still ‘‘occur[ ] in a manner’’ that
would require notification under
CERCLA section 103(a) and could thus
be subject to reporting under EPCRA
section 304(a)(2) where the petroleum
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release contains an EHS. See 52 FR
13378, 13385 (April 22, 1987). In sum,
where a CERCLA reporting exemption
or the reason a release is not subject to
CERCLA reporting is unrelated to the
manner in which such releases occur,
EPCRA section 304(a)(2) may compel
reporting of such releases.
In addition to the statutory text of
EPCRA section 304(a)(2), the statutory
framework of EPCRA’s reporting
requirements indicates a desire to
maintain consistency between the
EPCRA and CERCLA reporting
requirements. Indeed, ‘‘[i]n drafting the
EPCRA reporting requirements,
Congress expressly tied them to
CERCLA’s’’ such that ‘‘all of EPCRA’s
reporting mandates are piggybacked on
the CERCLA mandates in one form or
another.’’ Waterkeeper Alliance v. EPA,
853 F.3d 527, 532 (D.C. Cir. 2017).
Under EPCRA sections 304(a)(1) and
(a)(3), EPCRA reporting depends on
whether a release requires notification
under CERCLA section 103(a), and
under EPCRA section 304(a)(2), EPCRA
reporting depends on whether a release
‘‘occurs in a manner’’ that would
require notification under CERCLA
section 103(a). Therefore, EPCRA
requires reporting only for releases that
require notification under CERCLA or
occur in a manner that would require
notification under CERCLA. Under
CERCLA section 103 as amended, air
emissions from animal waste at farms
do not require notification under
CERCLA section 103(a) and do not
occur in a manner that would require
such notification. As a result, these
types of releases are not subject to
reporting under EPCRA section
304(a)(1), (a)(2) or (a)(3). Thus, to clarify
that these types of releases are not
subject to reporting under EPCRA
section 304, EPA is amending the
EPCRA release notification regulations
to exempt air emissions from animal
waste at farms from reporting under
section 304. In doing so, EPA seeks to
avoid inconsistent regulation of these
types of releases under EPCRA and
CERCLA, in furtherance of the
underlying purpose of this statutory
framework.
B. Legislative History
EPA’s understanding of EPCRA
section 304(a)(2) is informed by the
legislative history of EPCRA itself. In
1986, Congress passed EPCRA pursuant
to Title III of the Superfund
Amendments and Reauthorization Act
(SARA). In the committee conference
report addressing EPCRA, Congress
discussed the three scenarios requiring
release reporting under EPCRA section
304. With respect to EPCRA section
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304(a)(2), the report states: ‘‘This
requires notification where there is a
release of an extremely hazardous
substance that would require notice
under section 103(a) of CERCLA but for
the fact that the substance is not
specifically listed under CERCLA as
requiring such notice.’’ See 99 Cong.
Conf. Report H. Rep. 962, October 3,
1986; SARA Leg. Hist. 38 (Section 304
Emergency Notification).
Congress thus expressed its intent that
state and local authorities be notified of
a qualifying release under EPCRA, even
if the substance released is not
identified as a hazardous substance
under CERCLA, when the release occurs
in a manner as the types of releases that
require notification under CERCLA
section 103(a). Conversely, if the release
occurs in a manner that Congress
determines does not require notification
under CERCLA section 103(a)—such as
air emissions from animal waste at
farms—then no reporting is required
under EPCRA section 304(a)(2) (i.e., the
third criterion of EPCRA section
304(a)(2) has not been met).
The legislative history also reveals
that Congress intended EPCRA section
304(a)(2) to operate to exclude
continuous releases from EPCRA’s
immediate notification requirements
because such releases do not occur in a
manner that requires reporting under
CERCLA section 103(a).3 The committee
conference report explains: ‘‘[R]eleases
which are continuous or frequently
recurring and do not require reporting
under CERCLA are not required to be
reported under [EPCRA section 304].’’
Rather, continuous releases are subject
to reduced reporting requirements
pursuant to CERCLA section 103(f). As
explained in section C.3. of this
preamble, EPA incorporated an
alternative for continuous releases into
EPCRA and promulgated regulations
that allow continuous releases to be
reported in a manner consistent with
CERCLA’s continuous release reporting
requirements.
Congress’s intent in adopting the
three scenarios in EPCRA section
304(a)(1)–(3) was to ensure that when
3 CERCLA section 103(a) requires the person in
charge of a vessel or facility to ‘‘immediately
notify’’ the NRC when there is a release of a
hazardous substance in an amount equal to or
greater than the reportable quantity for that
substance within a 24-hour period. In contrast,
releases that are continuous and stable in quantity
and rate may qualify for reduced, ‘‘continuous
release’’ reporting under CERCLA section 103(f)(2).
Similarly, EPCRA section 304 requires owners or
operators of certain facilities to ‘‘immediately’’
notify state and local authorities of qualifying
releases, and EPA has promulgated regulations that
allow continuous releases to be reported under
EPCRA in a manner consistent with CERCLA’s
continuous release reporting requirements.
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Federal authorities receive notice of a
release under CERCLA section 103(a),
state and local authorities receive
similar notice under EPCRA. Note that
CERCLA notification applies to the list
of hazardous substances (located in 40
CFR 302.4), while EPCRA notification
applies to the lists of both CERCLA
hazardous substances and EPCRA EHSs
(located in 40 CFR part 355 Apps. A and
B). When a substance is not a listed
CERCLA hazardous substance (or a
federally permitted release and is above
the applicable reportable quantity), but
is on the EPCRA EHSs list, EPCRA
section 304(a)(2) provides for
notification only if the release of such
substance occurs in a manner as the
types of releases that require
notification under CERCLA section
103(a). On the other hand, if Congress
determines that a release occurs in a
manner that does not require
notification under CERCLA section
103(a), EPCRA section 304(a)(2) works
to logically exclude that release from
EPCRA reporting.
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C. Prior Regulatory Actions
As noted, CERCLA release
notification was established to alert
Federal authorities to a release so that
the need for a response can be evaluated
and any necessary response undertaken
in a timely fashion. EPCRA release
notification supplements CERCLA
release notification by similarly
preparing the community at the state
and local level. Based on the criteria for
EPCRA section 304 release reporting,
and to promote consistency between
CERCLA and EPCRA release notification
requirements, the Agency has
incorporated many of CERCLA’s release
notification exemptions into the EPCRA
release notification regulations through
prior rulemakings. Each of these prior
regulatory actions are summarized
below.
1. Exemptions From the Definition of
‘‘release’’ Under CERCLA and EPCRA
Both CERCLA and EPCRA define the
term ‘‘release.’’ Under CERCLA section
101(22), the term ‘‘release’’ generally
means ‘‘any spilling, leaking, pumping,
pouring, emitting, emptying,
discharging, injecting, escaping,
leaching, dumping, or disposing into the
environment (including the
abandonment or discarding of barrels,
containers, and other closed receptacles
containing any hazardous substance or
pollutant or contaminant),’’ but also
includes specific exclusions for
workplace releases, vehicle emissions,
nuclear material releases and fertilizer
application. Similar to the CERCLA
workplace exposure exclusion, EPCRA
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section 304(a)(4) exempts from reporting
any release which results in exposure to
persons solely within the site or sites on
which a facility is located. Though the
definition of ‘‘release’’ under EPCRA
section 329 mirrors the CERCLA
definition, it does not contain three
exclusions provided in the CERCLA
section 101(22) definition of ‘‘release’’:
(1) Emissions from the engine exhaust of
a motor vehicle, rolling stock, aircraft,
vessel or pipeline pumping station
engine; (2) releases of source, byproduct
or special nuclear material from a
nuclear incident; and (3) the normal
application of fertilizer. However,
because the types of releases excluded
from CERCLA’s definition of ‘‘release’’
do not occur in a manner that would be
reportable under CERCLA section
103(a), these types of releases do not
meet the reporting requirements under
EPCRA section 304. See 52 FR 13381,
13384–85 (April 22, 1987) and related
Response to Comments document, April
1987, Docket Number 300PQ. Thus,
EPA adopted these statutory CERCLA
exclusions into the EPCRA regulations
codified at 40 CFR 355.31.4
2. Exemptions From Immediate
Notification Requirements
There are four types of statutory
exemptions from the immediate
notification requirements for releases of
hazardous substances provided in
CERCLA sections 101(10) and 103(e)
and (f). Specifically, these statutory
exemptions include: (1) Federally
permitted releases, as defined in section
101(10); (2) the application of a
pesticide product registered under the
Federal Insecticide, Fungicide and
Rodenticide Act or from the handling
and storage of such a pesticide product
by an agricultural producer (section
103(e)); (3) certain releases of hazardous
wastes that are required to be reported
under the provisions of the Resource
Conservation and Recovery Act and that
are reported to the NRC (section
103(f)(1)); and (4) certain releases that
are determined to be continuous under
the provisions of section 103(f)(2).
In the final rulemaking on April 22,
1987 (52 FR 13378) for emergency
planning and release notification
requirements under EPCRA, the Agency
adopted exemptions from CERCLA
section 103(a) reporting ‘‘based on the
language in EPCRA section 304(a)
which requires that releases reportable
under that Section occur in a manner
which would require notification under
4 The 1987 rule codified these exemptions at 40
CFR 355.40(a)(2), which was later reorganized into
40 CFR 355.31. See 73 FR 65451 (November 3,
2008).
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27537
section 103(a) of CERCLA.’’ 52 FR
13378, 13381 (April 22, 1987).
Although EPA stated in the April
1987 rulemaking that it was
incorporating CERCLA reporting
exemptions into the EPCRA regulations
based on the criteria for EPCRA section
304 release reporting, the Agency
inadvertently omitted the exclusion for
the ‘‘application of a pesticide product
registered under the Federal Insecticide,
Fungicide, and Rodenticide Act or to
the handling and storage of such a
pesticide product by an agricultural
producer’’ from the EPCRA section 304
regulations at that time. Thus, in a
technical amendment published on May
24, 1989 (54 FR 22543), EPA added a
provision to the EPCRA regulations in
40 CFR 355.40(a)(2)(iv) (currently
codified at 40 CFR 355.31(c)) providing
that releases exempted from CERCLA
section 103(a) reporting by CERCLA
section 103(e) are also exempt from
reporting under EPCRA section 304. In
addition, the May 1989 technical
amendment clarified the language in
paragraph (a)(2)(v) of 40 CFR 355.40
(currently codified at 40 CFR 355.31(d)),
explaining that this section exempts
from EPCRA section 304 reporting ‘‘any
occurrence not meeting the definition of
release under section 101(22) of
CERCLA,’’ as ‘‘[s]uch occurrences are
also exempt from reporting under
CERCLA section 103(a).’’ See 54 FR
22543, 22543 (May 24, 1989).
3. Continuous Release Reporting
CERCLA section 103(f) provides relief
from the immediate notification
requirements of CERCLA section 103(a)
for a release of a hazardous substance
that is continuous and stable in quantity
and rate. Instead, continuous releases
are subject to a significantly reduced
reporting requirement under regulations
promulgated pursuant to CERCLA
section 103(f). In adopting the
implementing regulations for EPCRA in
40 CFR part 355, EPA relied on EPCRA
section 304(a)(2) to likewise exclude
continuous releases from the immediate
notification requirement of EPCRA
section 304, reasoning: ‘‘Because such
releases do not ‘occur in a manner’
which requires immediate release
reporting under section 103(a) of
CERCLA, they are also not reportable
under section 304 of [EPCRA].’’ See 52
FR 13381, 13384 (April 22, 1987). EPA
later promulgated continuous release
reporting regulations for EPCRA that
cross-reference and follow the CERCLA
continuous release reporting
regulations, finding that EPCRA release
reporting is ‘‘closely tied’’ and
‘‘parallel’’ to CERCLA release reporting.
See 55 FR 30169, 30179 (July 24, 1990).
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At that time, the Agency also reiterated
that ‘‘[t]o the extent that releases are
continuous and stable in quantity and
rate as defined by CERCLA section
103(f)(2) . . . , they do not occur in a
manner that requires notification under
CERCLA section 103(a)’’ and are thus
not subject to the EPCRA section 304
immediate notification requirements. Id.
(emphasis added).
IV. Scope of the Final Rule
The scope of this rulemaking is
limited to air emissions from animal
waste (including decomposing animal
waste) at a farm. The Agency is adding
this reporting exemption to the EPCRA
section 304 emergency release
notification regulations as implemented
in 40 CFR part 355, subpart C, entitled
‘‘Emergency Release Notification.’’ The
scope of this rulemaking stems from
existing requirements under EPCRA
section 304(a)(2) and under CERCLA
section 103(e), as amended, and is tied
to the nature or manner of these releases
rather than to a specific substance. In
other words, the Agency is not
exempting substances typically
associated with animal waste (such as
ammonia or hydrogen sulfide) from
reporting. Rather, this rulemaking
codifies EPA’s interpretation that air
emissions from animal waste at farms
are not subject to EPCRA section 304
release reporting by explicitly
exempting releases from animal waste
into the air at farms from reporting.
Thus, the Agency is excluding all
releases to the air from animal waste at
a farm from reporting under EPCRA
section 304.
This rulemaking does not apply to
releases of substances from animal
waste into non-air environmental
media, nor to releases into the air from
sources other than animal waste or
decomposing animal waste at a farm.
For example, a release from animal
waste into water (e.g., a lagoon breach)
or a release from an anhydrous
ammonia storage tank into the air might
trigger reporting requirements if the
release exceeds the applicable
reportable quantities.
This exemption is added to those
currently listed in the EPCRA
regulations codified at 40 CFR 355.31,
entitled ‘‘What types of releases are
exempt from the emergency release
notification requirements of this
subpart?’’
To delineate the scope of this
exemption, EPA is finalizing, as
proposed, the definitions of ‘‘animal
waste’’ and ‘‘farm’’ to be consistent with
CERCLA section 103(e). See 40 CFR
355.61 for the full text of these
definitions.
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V. Response to Comments
EPA received comments from various
organizations, including the National
Association of SARA Title III Program
Officials (NASTTPO), agricultural trade
associations, farm bureaus, a university
research center and environmental
groups. EPA also received individual
comment letters. This section provides
a summary of major comments received
and EPA’s responses. A detailed
summary of the comments and EPA’s
responses are in the Response to
Comments document, a copy of which
is in the docket for this rulemaking.
A. General Comments Supporting the
Proposed Rule
Several commenters, NASTTPO,
agricultural trade associations, the
Department of Agriculture from West
Virginia and North Dakota, farm bureaus
and a few private citizens, expressed
general support for the proposed
amendment to the EPCRA section 304
release reporting regulations to add the
reporting exemption for air emissions
from animal waste at farms provided in
CERCLA section 103(e). In support of
the proposed amendment, commenters
stated that the proposed rule lays out
the proper reading of the law and is
consistent with Congress’ clear intent
that EPCRA section 304 and CERCLA
release reporting requirements should
be applied consistently except in certain
very limited circumstances. Some of the
commenters stated that EPCRA was
never intended to govern agricultural
operations, where emissions from
livestock are a part of everyday life and
are certainly not emergency situations.
The natural breakdown of livestock
manure does not constitute an
emergency release pursuant to the
CERCLA and EPCRA laws. One
commenter stated that EPCRA was
created to protect citizens from disasters
such as 1984 Bhopal tragedy, however,
animal agriculture cannot be compared
to or included in a similar category
designed to address toxic chemicals,
hazardous substances and chemical
emergencies.
B. General Comments Opposing the
Proposed Rule
EPA received numerous mass mail
campaigns which include anonymous
private citizens, citizen & environmental
groups opposing the proposed
amendment to add the reporting
exemption to the EPCRA section 304
emergency release notification
regulations for air emissions from
animal waste at farms. Several
commenters strongly urge the EPA to
withdraw the proposed rule, which
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commenters said would exempt
concentrated animal feeding operations
(CAFOs) from EPCRA reporting
requirements so that reports of
hazardous substance releases will be
available to the public. Certain members
of the Senate Environment and Public
Works (SEPW) Committee strongly
urged EPA to withdraw the proposed
rule and faithfully execute and enforce
EPCRA and CERCLA reporting
requirements consistent with the laws
passed by Congress.
EPA also received individual
comment letters opposing the proposed
amendment. One commenter stated that
it is the job of the EPA to regulate
sources of hazardous emissions and
protect the population from known
sources of these emissions. One
commenter asked EPA not to ignore and
vacate their right-to-know by exempting
the CAFO’s responsibility to control and
report the toxic emissions they are
required to control and report.
EPA’s Response: While EPA
recognizes commenters’ concerns
regarding animal waste emissions, this
amendment is based on the statutory
language in EPCRA section 304 and its
relationship to CERCLA section 103
release reporting requirements. The
basic purpose of emergency release
notification requirements under EPCRA
section 304 is for facilities to inform
state and local agencies of accidental
releases so that these agencies can
exercise the local emergency response
plan if necessary. This may include, but
is not limited to, providing shelter or
evacuating the community to prevent
acute exposure from accidental releases
of chemicals. EPCRA section 304 serves
as a notification requirement for
chemical accidental releases, it is not
intended to regulate emissions.
In their letter to EPA dated June 1,
2017, the members of NASTTPO
indicated that the release reports for air
emissions from animal waste at farms
provide little value to local agencies and
first responders, and are generally
ignored. NASTTPO states that open
dialogue and coordination among farms
and local agencies can be more effective
than release reporting to address animal
waste management at farms. NASTTPO
reiterated this principle in its comment
to this rulemaking, dated December 14,
2018. In addition, regardless of
reporting, EPA can still enforce
applicable laws and regulations to
address threats to human health and the
environment. This rulemaking does not
limit the Agency’s authority under
CERCLA sections 104 (response
authorities), 106 (abatement actions),
107 (liability), or any other provisions of
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CERCLA to address releases of
hazardous substances at farms.
C. Comments on the Proposal To Add
Definitions of ‘‘animal waste’’ and
‘‘farm’’
EPA requested comments on adding
the definitions of ‘‘animal waste’’ and
‘‘farm’’ to the definition section of
EPCRA regulations in 40 CFR part 355.
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1. Support
A few commenters supported adding
the definitions of ‘‘animal waste’’ and
‘‘farm’’ to EPCRA regulations in 40 CFR
part 355. These commenters expressed
that the incorporation of the FARM
Act’s definitions of ‘‘animal waste’’ and
‘‘farm’’ into the ECPRA regulations
provides important regulatory clarity to
agricultural producers. In their
comments, NASTTPO expressed that
EPA has crafted a narrow and specific
exemption from the reporting of releases
from animal waste from farms.
2. Oppose
Many commenters as part of mass
mail campaigns as well as few
individual commenters opposed adding
the definitions of ‘‘animal waste’’ and
‘‘farm’’ to the EPCRA regulations in 40
CFR part 355. One of the commenters
specifically stated that limiting
definitions of what constitutes a farm, or
animal waste merely hides problems
and that we should be striving for more
transparency on issues concerning
emissions that affect climate and public
health, not trying to limit transparency.
Another commenter stated that it is only
the large CAFOs that can release
sufficient volumes of toxic pollutants, as
ammonia and hydrogen sulfide into the
air which obviously will then end up in
our soil and water.
EPA’s Response: On March 23, 2018,
the Fair Agricultural Reporting Method
(FARM) Act of 2018 amended CERCLA
section 103 to exempt the reporting of
air emissions from animal waste at a
farm. See Fair Agricultural Reporting
Method Act, Public Law 115–141
§§ 1101–1103 (2018). The FARM Act
includes definitions for ‘‘animal waste’’
and ‘‘farm.’’ On August 1, 2018, EPA
promulgated a final rule to incorporate
the FARM Act legislation into the
CERCLA reporting regulations at 40 CFR
part 302 (see 83 FR 37446), including
definitions for ‘‘animal waste’’ and
‘‘farm.’’ This amendment is based on
EPA’s interpretation of EPCRA section
304(a)(2) and its relationship to
CERCLA section 103 as amended by the
FARM Act. Thus, the Agency believes it
is reasonable to promulgate the same
definitions for ‘‘animal waste’’ and
‘‘farm’’ into the EPCRA release reporting
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regulations to maintain consistency
between the statutes and to effectuate
the exemption under EPCRA.
D. Comments on the Legal Rationale for
the Proposed Rule
EPA received comments supporting
and opposing the legal rationale for the
proposed rule. Below is a summary of
the significant comments received and
EPA’s responses. Details of these
comments and the Agency’s responses
are addressed in the Response to
Comments document which can be
found in the docket for this rulemaking.
1. Support
A few commenters state that Congress
intended for EPCRA reporting
requirements to be consistent with or
‘‘linked to’’ CERCLA reporting
requirements, which is evinced by the
statutory language in EPCRA section
304(a)(2). Commenters stated that EPA
has the authority to amend the EPCRA
emergency release notification
regulations to include the reporting
exemption for air emissions from animal
waste at farms provided in CERCLA
section 103(e). Commenters also note
that an analysis prepared by the
Congressional Research Service (CRS) at
the request of the Senate Committee on
Environment and Public Works (EPW)
supports EPA’s interpretation as
presented in the proposed rule. In sum,
commenters state the proposed rule is a
sound and lawful codification based on
the statutory language in EPCRA and
CERCLA.
2. Oppose
EPA received comments with a wide
range of arguments opposing the
Agency’s legal rationale for the
proposed rule. The following is a brief
summary of comments on each topic
presented in the preamble to the
proposed rule. Details of comments
received and the Agency’s response can
be found in the Response to Comments
document at the docket for this
rulemaking.
i. Statutory Text
A few commenters argue the proposed
rule is in direct contravention of the
plain language of EPCRA and CERCLA
and is therefore ‘‘fundamentally flawed’’
and ‘‘illegal.’’ One commenter argues
that the phrase ‘‘occurs in a manner’’
makes it clear that even if a release is
not reported under CERCLA, EPCRA
reporting would still be required if the
‘‘factual’’ circumstances of the release
would otherwise require CERCLA
reporting. The commenter also stated
that EPA arbitrarily based its
interpretation of ‘‘occurs in a manner’’
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27539
on the method or type of release (i.e.,
into the air) rather than on the substance
emitted. Additionally, this commenter
argues that the statute provides no
support for such an interpretation.
Another commenter expressed that the
plain language of EPCRA is
unambiguous in that it prohibits EPA
from exempting animal feeding
operations from EPCRA’s reporting
requirements; but even if there was
some ambiguity in the statute, the
proposed rule is arbitrary and
capricious because EPA has not
provided a reasoned explanation to
justify its departure from the statute or
supported that explanation with
substantive record evidence.
EPA’s Response: EPA’s interpretation
is lawful and based on the plain
language of EPCRA and CERCLA. EPA
reasonably interpreted the operative
language in EPCRA section 304(a)(2) as
requiring EPCRA reporting when the
release ‘‘occurs in a manner’’ which
would require notification under
CERCLA section 103(a). Because air
emissions from animal waste at farms
do not ‘‘occur in a manner’’ that would
require notification under CERCLA
section 103(a), such releases are not
reportable under EPCRA section
304(a)(2).
EPA disagrees with commenters’
analysis that reporting of these types of
air emissions would still be required
under EPCRA so long as they are
factually releases under CERCLA. EPA
understands these comments to propose
that the ‘‘occurs in a manner’’ language
in EPCRA section 304(a)(2) means that
a release only has to satisfy the
definition of a ‘‘release’’ under CERCLA
to be eligible for EPCRA reporting. Such
a reading is unnecessary as the
definition of a ‘‘release’’ in EPCRA
already mirrors the definition of a
‘‘release’’ in CERCLA. (see the definition
of ‘‘release’’ under EPCRA section
329(8) and CERCLA section 101(22).
While the CERCLA definition may focus
more on hazardous substances and the
EPCRA definition focusses more on
extremely hazardous substances and
hazardous or toxic chemicals, both
definitions list similar types, ways, or
manners of a release.
EPA believes it is not a full and fair
reading of EPCRA section 304(a)(2) to
say that EPCRA reporting would still be
necessary if a release to the environment
qualifies as a release to the environment
under CERCLA, regardless of whether
reporting is legally required under
CERCLA. An EPCRA release into the
environment already follows the
definition of a release into the
environment under CERCLA. Applied to
the present rulemaking, emissions into
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the air from animal waste at farms
already qualify as releases into the
environment under both statutes (i.e.,
they are ‘‘emitting’’ or ‘‘escaping’’ under
the statutory definitions). Further
analysis of what factually is a release to
the environment does not shed light on
the Congressional intent of EPCRA
section 304(a)(2) and does not follow
the plain language of the statute, which
requires, in part, that a release occurs in
a manner which would require
notification under CERCLA section
103(a).
In enacting the FARM Act, the Senate
EPW requested an analysis from the
Congressional Research Service (CRS) of
the potential effects of the FARM Act’s
amendments to CERCLA and EPCRA
release reporting. The CRS issued two
memorandums, March 7, 2018 (an
overview of CERCLA and EPCRA
release reporting, statutory exemptions,
the 2008 CERCLA/EPCRA rule and
resulting litigation, etc.) and March 13,
2018 (‘‘Supplemental Analysis: Fair
Agricultural Reporting Method Act/
FARM Act (S.2421’’). CRS agreed with
this interpretation in its memorandum
dated March 7, 2018, which states:
[T]he phrase ‘‘occurs in a manner’’
generally has been implemented over time to
mean the nature of the release in terms of
how the substance enters the environment.
[CRS March 7, 2018 memorandum page 6].
The next question is whether the
release would require notification under
CERCLA section 103(a). As discussed
earlier, the FARM Act exempted only
releases of a certain kind or manner—
air emissions from animal waste at
farms—from notification under CERCLA
section 103(a). Accordingly, these types
of releases do not occur in a manner that
would require notification under
CERCLA section 103(a). Because the
third criteria of EPCRA section 304(a)(2)
is not met, no reporting under EPCRA
is required.
EPA believes its interpretation follows
the plain language of the statute and
carries out the Congressional intent of
EPCRA section 304(a)(2).
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ii. Legislative History and Prior Agency
Actions
Commenters opposing the proposal
argue that the legislative history of the
FARM Act makes it clear that Congress
intended for EPCRA reporting to
continue notwithstanding the FARM
Act’s CERCLA exemption. The letter
from certain Senate EPW members cites
to testimony by Senators and witnesses
explaining that the FARM Act makes no
changes to reporting requirements for
releases of extremely hazardous
substances under EPCRA. Commenters
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assert that the proposed rule violates the
legislative intent of the FARM Act. One
commenter argues that EPCRA’s
legislative history does not support
EPA’s prior actions exempting certain
releases from EPCRA reporting, such as
the CERCLA continuous release
provision.
EPA’s Response: In enacting the
FARM Act, Congress amended the
CERCLA section 103 reporting
requirements; it did not amend the
EPCRA section 304 reporting
requirements. While the FARM Act
legislative history has relevance with
respect to the statutory changes to
reporting under CERCLA section 103,
EPA considered the text of EPCRA
section 304 and its legislative history in
issuing this rule. As stated throughout
the proposed rule, EPA has interpreted
EPCRA section 304(a)(2) as carrying
over CERCLA reporting exemptions
related to the manner or nature of
release. In this way, EPCRA section
304(a)(2) promotes consistency between
EPCRA and CERCLA reporting. The
legislative history of the FARM Act does
not address the legislative history of
EPCRA, and if Congress wished to
ensure that the exemption in the FARM
Act did not carry over into EPCRA
reporting, it could have expressly
enacted such statutory text, but it did
not.
The legislative history of the FARM
Act is correct to the extent that the
amendment does not exempt all releases
from animal waste at farms from
reporting under EPCRA. Rather, the
amendment only exempts certain types
of releases, and this rule tracks the
FARM Act to provide that a limited type
of release, air emissions from animal
waste at farms, are not subject to
reporting under EPCRA. This rule does
not apply to releases of substances from
animal waste into non-air
environmental media, nor to releases
into the air from sources other than
animal waste or decomposing animal
waste at a farm. For example, a release
from animal waste into water (e.g., a
lagoon breach) or a release from an
anhydrous ammonia storage tank into
the air might trigger reporting
requirements if the release exceeds the
applicable reportable quantities. This is
because the releases occur in a manner
that require reporting under CERCLA
because they are releases into a non-air
media or they are not emissions from
animal waste.
The proposed rule also explains how,
in the 1986 committee conference report
addressing EPCRA, Congress expressed
its intent that EPCRA release reporting
be aligned with CERCLA reporting. As
an example, the committee conference
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report explains how continuous releases
which are not subject to immediate
reporting requirements under CERCLA
should likewise not be subject to EPCRA
reporting. As result, EPA promulgated
reduced reporting requirements that
cross-reference and follow the CERCLA
reduced reporting requirements for
continuous releases. In this manner,
EPA reasonably followed Congressional
intent to state that numerous types of
releases are not subject to reporting
under EPCRA when reporting wasn’t
required under CERCLA, including
vehicle emissions, the normal
application of fertilizer, and the
application of registered pesticide
products (see the Federal Register
notice for the proposed rule for a more
detailed discussion).
The legislative history of the FARM
Act’s amendment to CERCLA did not
nullify the statutory text in EPCRA
section 304(a)(2). EPA reasonably
interpreted that text and the proposed
rule is supported by EPCRA’s legislative
history.
E. Other Comments
EPA also received adverse comments
on the rulemaking and its impact on
environment and public health. These
commenters expressed that the
proposed exemption will prevent local
emergency responders from accessing
information to protect the community.
Some commenters assert that the
proposed rule is arbitrary and
capricious because the Agency failed to
consider environmental justice, the
National Environmental Policy Act, and
the Endangered Species Act prior to
issuing the proposed rule.
EPA’s Response: Although these
comments are outside the scope of this
rulemaking, the Agency’s response to
these comments are provided in the
Response to Comments document,
which can be found in the docket to this
rulemaking.
F. Request for Public Comment Period
Extension & Public Hearings
Three commenters, a university
research organization, mass mail
campaign and community group,
requested EPA to extend the public
comment period for the proposed rule.
These commenters stated that the
proposed rule may have significant
consequences on the ability of local
governments and their residents to
protect their health and wellbeing, none
of which seems to have been considered
by EPA during the preparation of the
proposed rule. Additionally, these
commenters expressed that they need an
additional 60 days to collect
information from studies on health and
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environmental impacts of CAFO air
emissions on surrounding communities
as rulemaking docket does not contain
any scientific studies or other
documents about toxic emissions from
CAFOs and their impact on surrounding
communities.
Two groups, mass mail campaigns
and community organization, requested
public hearings on the proposed rule
stating that given the impact that the
proposed rule will have on communities
across the country, including a
disproportionate number of low-income
and minority communities, EPA should
schedule at least three public hearings
in various locations across the country
to ensure adequate public participation
in the rulemaking process. EPA should
hold these hearings in locations near to
communities affected by CAFOs, for
example, communities in North
Carolina, Maryland, Iowa, or Oklahoma,
to name a few.
EPA’s Response: EPA believes that the
30-day comment period was
appropriate. The proposed rule is based
on a reasonable interpretation of the
statutory language in EPCRA section
304(a)(2) and its relationship with
CERCLA section 103 as amended by the
FARM Act. EPA’s rationale is set out in
the Federal Register notice for the
proposed rule and all the supporting
documents the Agency relied on are
available in the associated docket.
The proposed rule is not based on
health or environmental risk, so no such
associated studies are necessary.
Because the proposed rule is based on
a statutory interpretation, the record is
not extensive, and therefore EPA did not
believe such an extension should be
granted. EPA also generally set out its
statutory interpretation in the guidance
document entitled ‘‘How does the Fair
Agricultural Reporting Method (FARM)
Act impact reporting of air emissions
from animal waste under CERCLA
Section 103 and EPCRA Section 304?’’
dated April 2018. That guidance
document states: ‘‘EPA intends to
conduct a rulemaking to address the
impact of the FARM Act on the
reporting of air emissions from animal
waste at farms under EPCRA.’’
Accordingly, the commenters were
provided a meaningful opportunity to
comment and no extensions were
necessary to comment on EPA’s
statutory interpretation. Similarly, no
public meetings or hearing were
required or deemed necessary to allow
for comment on EPA’s interpretation.
VI. Statutory and Executive Orders
Additional information about these
statutes and Executive Orders can be
VerDate Sep<11>2014
16:11 Jun 12, 2019
Jkt 247001
found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is a significant regulatory
action that was submitted to the Office
of Management and Budget (OMB) for
review. Any changes made in response
to OMB recommendations have been
documented in the docket.
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This action is not subject to Executive
Order 13771 because this final rule does
not result in additional costs.
C. Paperwork Reduction Act (PRA)
This action does not impose any new
information collection burden under the
PRA. The Agency is codifying a
provision exempting farms from
reporting air releases from animal waste
under EPCRA section 304 release
notification regulations.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA. In making this
determination, the impact of concern is
any significant adverse economic
impact on small entities. 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, has
no net burden or otherwise has a
positive economic effect on the small
entities subject to the rule. Consistent
with the Agency’s interpretation that air
emissions from animal waste at farms
are not subject to EPCRA section 304
release reporting, this final rule
explicitly exempts these types of
releases from EPCRA reporting and
would not result in additional costs.
E. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local or
tribal governments or the private sector.
The Agency is amending the EPCRA
section 304 release notification
regulations to add the reporting
exemption for air emissions from animal
waste at farms provided in CERCLA
section 103(e), as amended.
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Fmt 4700
Sfmt 4700
27541
F. Executive Order 13132: Federalism
This action 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.
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. The EPA is amending the
EPCRA section 304 release notification
regulations to add the reporting
exemption for air emissions from animal
waste at farms provided in CERCLA
section 103(e), as amended. Thus,
Executive Order 13175 does not apply
to this action.
H. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
The EPA interprets Executive Order
13045 as applying to those regulatory
actions that concern environmental
health or safety risks that the EPA has
reason to believe may
disproportionately affect children, per
the definition of covered regulatory
action in section 2–202 of the Executive
Order. This final rule is not based on
health or environmental effect, rather, it
is intended to maintain consistency
between EPCRA section 304 and
CERCLA section 103(a) emergency
release notification requirements by
exempting reporting of air emissions
from animal waste at farms.
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This action is not a ‘‘significant
energy action’’ because it is not likely to
have a significant adverse effect on the
supply, distribution or use of energy.
The EPA is amending the EPCRA
section 304 release notification
regulations to add the reporting
exemption for air emissions from animal
waste at farms provided in CERCLA
section 103(e), as amended.
J. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards.
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Federal Register / Vol. 84, No. 114 / Thursday, June 13, 2019 / Rules and Regulations
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this action is
not subject to Executive Order 12898 (59
FR 7629, February 16, 1994) because it
does not establish an environmental
health or safety standard. EPA has no
authority under EPCRA to prevent or
reduce emissions from certain facilities
or their operations. The rule presents a
statutory interpretation intended to
maintain consistency between EPCRA
section 304(a) and CERCLA section 103
release notification requirements and
does not have any impact on human
health or the environment.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
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List of Subjects in 40 CFR Part 355
Environmental protection, Chemicals,
Disaster assistance, Hazardous
substances, Hazardous waste, Natural
VerDate Sep<11>2014
16:11 Jun 12, 2019
Jkt 247001
resources, Penalties, Reporting and
recordkeeping requirements, Superfund.
‘‘Animal waste’’ and ‘‘Farm’’ to read as
follows:
Dated: June 4, 2019.
Andrew R. Wheeler,
Administrator.
§ 355.61 How are key words in this part
defined?
For the reasons set forth in the
preamble, EPA amends 40 CFR part 355
as follows:
PART 355—EMERGENCY PLANNING
AND NOTIFICATION
1. The authority citation for part 355
continues to read as follows:
■
Authority: Sections 302, 303, 304, 325,
327, 328, and 329 of the Emergency Planning
and Community Right-to-Know Act of 1986
(EPCRA) (42 U.S.C. 11002, 11003, 11004,
11045, 11047, 11048, and 11049).
2. Amend § 355.31 by adding
paragraph (g) to read as follows:
■
§ 355.31 What types of releases are
exempt from the emergency release
notification requirements of this subpart?
*
*
*
*
*
(g) Air emissions from animal waste
(including decomposing animal waste)
at a farm.
■ 3. Amend § 355.61 by adding in
alphabetical order definitions for
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Fmt 4700
Sfmt 9990
Animal waste means feces, urine, or
other excrement, digestive emission,
urea, or similar substances emitted by
animals (including any form of
livestock, poultry, or fish). This term
includes animal waste that is mixed or
commingled with bedding, compost,
feed, soil, or any other material typically
found with such waste.
*
*
*
*
*
Farm means a site or area (including
associated structures) that—
(1) Is used for—
(i) The production of a crop; or
(ii) The raising or selling of animals
(including any form of livestock,
poultry, or fish); and
(2) Under normal conditions,
produces during a farm year any
agricultural products with a total value
equal to not less than $1,000.
*
*
*
*
*
[FR Doc. 2019–12411 Filed 6–12–19; 8:45 am]
BILLING CODE 6560–50–P
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Agencies
[Federal Register Volume 84, Number 114 (Thursday, June 13, 2019)]
[Rules and Regulations]
[Pages 27533-27542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12411]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 355
[EPA-HQ-OLEM-2018-0318; FRL-9995-03-OLEM]
RIN 2050-AH00
Amendment to Emergency Release Notification Regulations on
Reporting Exemption for Air Emissions From Animal Waste at Farms;
Emergency Planning and Community Right-to-Know Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
amending the release notification regulations under the Emergency
Planning and Community Right-to-Know Act (EPCRA) to add the reporting
exemption for air emissions from animal waste at farms provided in
section 103(e) of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA). In addition, EPA is adding
definitions of ``animal waste'' and ``farm'' to the EPCRA regulations
to delineate the scope of this reporting exemption. This amendment
maintains consistency between the emergency release notification
requirements of EPCRA and CERCLA in
[[Page 27534]]
accordance with the statutory text, framework and legislative history
of EPCRA, and is consistent with the Agency's prior regulatory actions.
DATES: This final rule is effective July 15, 2019.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OLEM-2018-0318. All documents in the docket are
listed on the https://www.regulations.gov website. 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, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Sicy Jacob, United States
Environmental Protection Agency, Office of Land and Emergency
Management, 1200 Pennsylvania Ave. NW, (Mail Code 5104A), Washington,
DC 20460; telephone number: (202) 564-8019; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
A list of entities that could be affected by this final rule
include, but are not necessarily limited to:
----------------------------------------------------------------------------------------------------------------
Type of entity Examples of affected entities
----------------------------------------------------------------------------------------------------------------
Industry...................................................... NAICS code 111--Crop production.
NAICS code 112--Animal production.
States and/or Local Governments............................... NAICS code 999200--State Government, excluding
schools and hospitals.
NAICS code 999300--Local Government, excluding
schools and hospitals.
State Emergency Response Commissions, Tribal
Emergency Response Commissions, Tribal
Emergency Planning Committees and Local
Emergency Planning Committees.
----------------------------------------------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provide a
guide for readers regarding the types of entities that EPA is aware
could be involved in the activities affected by this action. However,
other types of entities not listed in this table could be affected by
this final rule. To determine whether your entity is affected by this
action, you should carefully examine the applicability criteria found
in Sec. 355.30 of title 40 of the Code of Federal Regulations (CFR).
If you have questions regarding the applicability of this action to a
particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.
B. What action is the Agency taking?
The EPA is amending the EPCRA emergency release notification
regulations to include the reporting exemption for air emissions from
animal waste at farms provided in CERCLA section 103(e). In addition,
EPA is adding definitions of ``animal waste'' and ``farm'' to the EPCRA
regulations to delineate the scope of this reporting exemption.
C. What is the Agency's authority for taking this action?
This final rule is being issued under EPCRA, which was enacted as
Title III of the Superfund Amendments and Reauthorization Act (SARA) of
1986 (Pub. L. 99-499). EPA finalizes this action under the authority of
EPCRA section 304 (42 U.S.C. 11004) and the Agency's general rulemaking
authority under EPCRA section 328 (42 U.S.C. 11048).
D. What is the background of this final rule?
Section 103 of CERCLA requires the person in charge of a vessel or
facility to immediately notify the National Response Center (NRC) when
there is a release of a hazardous substance, as defined under CERCLA
section 101(14), in an amount equal to or greater than the reportable
quantity for that substance within a 24-hour period. In addition to
these CERCLA reporting requirements, EPCRA section 304 requires owners
or operators of certain facilities to immediately notify state and
local authorities when there is a release of an extremely hazardous
substance (EHS), as defined under EPCRA section 302, or of a CERCLA
hazardous substance in an amount equal to or greater than the
reportable quantity for that substance within a 24-hour period.
EPCRA and CERCLA are two separate but interrelated environmental
laws that work together to provide emergency release notifications to
Federal, state and local officials. Notice given to the NRC under
CERCLA serves to inform the Federal government of a release so that
Federal personnel can evaluate the need for a response in accordance
with the National Oil and Hazardous Substances Contingency Plan
(NCP),\1\ the Federal government's framework for responding to both oil
discharges and hazardous substance releases. Relatedly, notice under
EPCRA is given to the State Emergency Response Commission (SERC) for
any state likely to be affected by the release and to the community
emergency coordinator for the Local Emergency Planning Committee (LEPC)
for any area likely to be affected by the release so that state and
local authorities have information to help protect the community.
---------------------------------------------------------------------------
\1\ 40 CFR part 300.
---------------------------------------------------------------------------
Release reporting under EPCRA depends, in part, on whether
reporting is required under CERCLA.\2\ Specifically, EPCRA section
304(a) provides for reporting under the following three release
scenarios:
---------------------------------------------------------------------------
\2\ In this document, emergency release notification and release
reporting are used interchangeably.
---------------------------------------------------------------------------
EPCRA section 304(a)(1) requires notification if a release
of an EPCRA EHS occurs from a facility at which a hazardous chemical is
produced, used or stored, and such release requires a notification
under CERCLA section 103(a).
EPCRA section 304(a)(2) requires notification if a release
of an EPCRA EHS occurs from a facility at which a hazardous chemical is
produced, used or stored, and such release is not subject to the
notification requirements under CERCLA section 103(a), but only if the
release:
[cir] Is not a federally permitted release as defined in CERCLA
section 101(10),
[cir] Is in an amount in excess of the reportable quantity as
determined by EPA, and
[cir] Occurs in a manner that would require notification under
CERCLA section 103(a).
EPCRA section 304(a)(3) requires notification if a release
of a substance not designated as an EPCRA EHS occurs from a facility at
which a hazardous chemical is produced, used or stored, and such
release requires a notification under CERCLA section 103(a).
On March 23, 2018, the President signed into law the Consolidated
[[Page 27535]]
Appropriations Act, 2018 (``Omnibus Bill''). Title XI of the Omnibus
Bill is entitled the ``Fair Agricultural Reporting Method Act'' or the
``FARM Act.'' See Fair Agricultural Reporting Method Act, Public Law
115-141, sections 1101-1103 (2018). The FARM Act expressly exempts
reporting of air emissions from animal waste (including decomposing
animal waste) at a farm from CERCLA section 103. The FARM Act also
provides definitions for the terms ``animal waste'' and ``farm.''
The FARM Act amended CERCLA by providing an exemption from
reporting air emissions from animal waste at farms. Because these types
of releases are exempted under CERCLA, based on the release reporting
criteria under EPCRA section 304, these types of releases are also
exempt under EPCRA section 304.
Consequently, on November 14, 2018, EPA published a proposed rule
to amend the release reporting regulations under EPCRA section 304. The
comment period closed on December 14, 2018. EPA received 87,473
comments, of which 87,091 are mass mail campaigns opposing the proposed
rule. The remaining were individual letters that either supported or
opposed the proposed rule. EPA's response to significant comments are
generally addressed below in Section V of this preamble. EPA developed
a response to comment document to address all the comments received by
the Agency on the proposed rule, which is in the docket EPA-HQ-OLEM-
2018-0318 to this final rule. In addition, this rulemaking generally
tracks the guidance document EPA had previously issued after enactment
of the FARM Act. Thus, EPA formally withdraws the guidance document
entitled, ``How does the Fair Agricultural Reporting Method (FARM) Act
impact reporting of air emissions from animal waste under CERCLA
Section 103 and EPCRA Section 304?'' dated April 27, 2018.
II. Summary of This Final Rule
This final rule amends the release reporting regulations under
EPCRA section 304 by adding the reporting exemption in 40 CFR 355.31
for air emissions from animal waste at farms, as proposed. EPA is also
adding definitions of ``animal waste'' and ``farm'' to the definition
section of the EPCRA regulations in 40 CFR 355.61 to delineate the
scope of this reporting exemption, as proposed. EPA believes this final
rule appropriately reflects the relationship between CERCLA and EPCRA
release reporting requirements and is consistent with the statutory
text, framework and legislative history of EPCRA, as well as the
Agency's prior regulatory actions.
III. Legal Rationale for This Final Rule
This rulemaking maintains consistency between the emergency release
notification requirements of EPCRA and CERCLA in accordance with the
statutory text, framework and legislative history of EPCRA, and is
consistent with the Agency's prior regulatory actions. Specifically,
this rulemaking is based on the relationship of the EPCRA section 304
reporting requirements to the CERCLA section 103 reporting
requirements, as recently amended. As previously noted, EPCRA section
304 reporting depends, in part, on whether reporting is required under
CERCLA section 103. EPCRA's legislative history further indicates that
the EPCRA section 304 reporting requirements are designed to be
consistent with the reporting requirements of CERCLA section 103. EPA
has thus revised the EPCRA emergency release notification regulations
from time to time, as appropriate, to maintain consistency with the
CERCLA reporting requirements.
Consistent with the Agency's interpretation of EPCRA section 304
and the Agency's prior regulatory actions, EPA is amending the EPCRA
release notification regulations to explicitly exempt air emissions
from animal waste at farms from reporting under EPCRA section 304.
A. Statutory Text and Framework
EPCRA section 304 provides for release reporting under three
scenarios, each of which depends in some way on whether the release
requires notice under CERCLA. If a release requires notice under CERCLA
section 103(a), the release may be subject to reporting under EPCRA if
the release meets the requirements of EPCRA section 304(a)(1) or
304(a)(3). Because the FARM Act exempted air emissions from animal
waste at farms from CERCLA reporting, these types of releases no longer
require notice under CERCLA section 103(a). If a release is not subject
to notification under CERCLA section 103(a), the release may
nonetheless be subject to reporting under EPCRA if the release meets
the requirements of EPCRA section 304(a)(2). Pursuant to EPCRA section
304(a)(2), a release of an EPCRA EHS that is not subject to
notification under section 103(a) of CERCLA need only be reported under
EPCRA if the release:
Is not a federally permitted release as defined in section
101(10) of CERCLA,
Is in an amount in excess of the reportable quantity as
determined by EPA, and
Occurs in a manner that would require notification under
section 103(a) of CERCLA.
A release that is not subject to CERCLA section 103(a) reporting
must meet all three criteria in EPCRA section 304(a)(2) to be subject
to EPCRA reporting. Here, air emissions from animal waste at farms
could meet the first two criteria because such releases are generally
not federally permitted and may exceed the applicable reportable
quantity. Yet these types of releases do not ``occur[ ] in a manner''
that would require notification under CERCLA section 103(a) and thus do
not meet the third criterion of EPCRA section 304(a)(2). Because air
emissions from animal waste at farms do not meet all three criteria
under EPCRA section 304(a)(2), and do not fall within the EPCRA section
304(a)(1) or (a)(3) reporting scenarios, these types of releases are
not subject to EPCRA reporting. As such, EPA is amending the EPCRA's
emergency release notification regulations to clarify reporting
exemptions for certain types of releases under EPCRA section 304.
Air emissions from animal waste at farms no longer ``occur[ ] in a
manner'' that would require notification under CERCLA section 103(a)
because the FARM Act exempted these types of releases from CERCLA
reporting. Importantly, the CERCLA reporting exemption is specifically
tied to the nature or manner of these releases rather than to a
specific substance. For example, the FARM Act amendment does not exempt
specific substances typically associated with animal waste (such as
ammonia and hydrogen sulfide) from reporting; rather, it exempts from
reporting releases of any substance from animal waste at a farm into
the air. Because air emissions from animal waste do not ``occur[ ] in a
manner'' that would require notification under CERCLA section 103(a),
these types of releases do not meet the third criterion of EPCRA
section 304(a)(2) and are thus not subject to EPCRA reporting.
EPCRA section 304(a)(2) promotes consistency between the reporting
requirements of EPCRA and CERCLA by ensuring that only releases that
``occur[ ] in a manner'' that would require CERCLA notification be
reported under EPCRA. Yet, the provision also contemplates scenarios
where releases not subject to reporting under CERCLA may still need to
be reported under EPCRA, such as releases of substances designated as
EHSs under EPCRA but not as hazardous substances under
[[Page 27536]]
CERCLA. For example, trimethylchlorosilane (Chemical Abstract Service
No. 75-77-4) is designated as an EPCRA EHS but not as a CERCLA
hazardous substance. Since trimethylchlorosilane is not a CERCLA
hazardous substance, its releases are not subject to notification under
CERCLA section 103(a) and need only be reported under EPCRA if such
releases meet the criteria of EPCRA section 304(a)(2). A
trimethylchlorosilane release that (1) is not a federally permitted
release as defined in CERCLA section 101(10); (2) exceeds the
applicable reportable quantity; and (3) ``occurs in a manner'' that
would require notification under CERCLA section 103(a) would still be
subject to EPCRA reporting. In this example, a release of
trimethylchlorosilane ``occurs in a manner'' that would require
notification under CERCLA section 103(a) where it is not one of the
excluded or exempted types of releases described in CERCLA sections
101(22), 103(e), or 103(f). (See section C of this preamble, for
further explanation of these exemptions.) The reason the release is not
subject to notification under CERCLA section 103(a) is because
trimethylchlorosilane is not a CERCLA hazardous substance, not because
there is anything particular about the release that renders it exempt.
As another example, petroleum (including crude oil or any fraction
thereof) is expressly excluded from the definition of ``hazardous
substance'' in CERCLA section 101(14). Because of this ``petroleum
exclusion,'' releases of petroleum are not subject to notification
under CERCLA section 103(a) and so need to be reported under EPCRA only
if such releases meet the criteria of EPCRA section 304(a)(2). Where a
petroleum release meets the first two criteria of EPCRA section
304(a)(2), the question becomes whether the release ``occurs in a
manner'' that would require notification under CERCLA section 103(a).
Notably, unlike air emissions from animal waste at farms, Congress did
not exempt petroleum releases from CERCLA reporting based on the manner
or nature of these releases. Instead, Congress exempted these types of
releases from CERCLA reporting by excluding petroleum (including crude
oil or any fraction thereof) from the definition of ``hazardous
substance.'' See 42 U.S.C. 9601(14). As such, these types of releases
still ``occur[ ] in a manner'' that would require notification under
CERCLA section 103(a) and could thus be subject to reporting under
EPCRA section 304(a)(2) where the petroleum release contains an EHS.
See 52 FR 13378, 13385 (April 22, 1987). In sum, where a CERCLA
reporting exemption or the reason a release is not subject to CERCLA
reporting is unrelated to the manner in which such releases occur,
EPCRA section 304(a)(2) may compel reporting of such releases.
In addition to the statutory text of EPCRA section 304(a)(2), the
statutory framework of EPCRA's reporting requirements indicates a
desire to maintain consistency between the EPCRA and CERCLA reporting
requirements. Indeed, ``[i]n drafting the EPCRA reporting requirements,
Congress expressly tied them to CERCLA's'' such that ``all of EPCRA's
reporting mandates are piggybacked on the CERCLA mandates in one form
or another.'' Waterkeeper Alliance v. EPA, 853 F.3d 527, 532 (D.C. Cir.
2017). Under EPCRA sections 304(a)(1) and (a)(3), EPCRA reporting
depends on whether a release requires notification under CERCLA section
103(a), and under EPCRA section 304(a)(2), EPCRA reporting depends on
whether a release ``occurs in a manner'' that would require
notification under CERCLA section 103(a). Therefore, EPCRA requires
reporting only for releases that require notification under CERCLA or
occur in a manner that would require notification under CERCLA. Under
CERCLA section 103 as amended, air emissions from animal waste at farms
do not require notification under CERCLA section 103(a) and do not
occur in a manner that would require such notification. As a result,
these types of releases are not subject to reporting under EPCRA
section 304(a)(1), (a)(2) or (a)(3). Thus, to clarify that these types
of releases are not subject to reporting under EPCRA section 304, EPA
is amending the EPCRA release notification regulations to exempt air
emissions from animal waste at farms from reporting under section 304.
In doing so, EPA seeks to avoid inconsistent regulation of these types
of releases under EPCRA and CERCLA, in furtherance of the underlying
purpose of this statutory framework.
B. Legislative History
EPA's understanding of EPCRA section 304(a)(2) is informed by the
legislative history of EPCRA itself. In 1986, Congress passed EPCRA
pursuant to Title III of the Superfund Amendments and Reauthorization
Act (SARA). In the committee conference report addressing EPCRA,
Congress discussed the three scenarios requiring release reporting
under EPCRA section 304. With respect to EPCRA section 304(a)(2), the
report states: ``This requires notification where there is a release of
an extremely hazardous substance that would require notice under
section 103(a) of CERCLA but for the fact that the substance is not
specifically listed under CERCLA as requiring such notice.'' See 99
Cong. Conf. Report H. Rep. 962, October 3, 1986; SARA Leg. Hist. 38
(Section 304 Emergency Notification).
Congress thus expressed its intent that state and local authorities
be notified of a qualifying release under EPCRA, even if the substance
released is not identified as a hazardous substance under CERCLA, when
the release occurs in a manner as the types of releases that require
notification under CERCLA section 103(a). Conversely, if the release
occurs in a manner that Congress determines does not require
notification under CERCLA section 103(a)--such as air emissions from
animal waste at farms--then no reporting is required under EPCRA
section 304(a)(2) (i.e., the third criterion of EPCRA section 304(a)(2)
has not been met).
The legislative history also reveals that Congress intended EPCRA
section 304(a)(2) to operate to exclude continuous releases from
EPCRA's immediate notification requirements because such releases do
not occur in a manner that requires reporting under CERCLA section
103(a).\3\ The committee conference report explains: ``[R]eleases which
are continuous or frequently recurring and do not require reporting
under CERCLA are not required to be reported under [EPCRA section
304].'' Rather, continuous releases are subject to reduced reporting
requirements pursuant to CERCLA section 103(f). As explained in section
C.3. of this preamble, EPA incorporated an alternative for continuous
releases into EPCRA and promulgated regulations that allow continuous
releases to be reported in a manner consistent with CERCLA's continuous
release reporting requirements.
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\3\ CERCLA section 103(a) requires the person in charge of a
vessel or facility to ``immediately notify'' the NRC when there is a
release of a hazardous substance in an amount equal to or greater
than the reportable quantity for that substance within a 24-hour
period. In contrast, releases that are continuous and stable in
quantity and rate may qualify for reduced, ``continuous release''
reporting under CERCLA section 103(f)(2). Similarly, EPCRA section
304 requires owners or operators of certain facilities to
``immediately'' notify state and local authorities of qualifying
releases, and EPA has promulgated regulations that allow continuous
releases to be reported under EPCRA in a manner consistent with
CERCLA's continuous release reporting requirements.
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Congress's intent in adopting the three scenarios in EPCRA section
304(a)(1)-(3) was to ensure that when
[[Page 27537]]
Federal authorities receive notice of a release under CERCLA section
103(a), state and local authorities receive similar notice under EPCRA.
Note that CERCLA notification applies to the list of hazardous
substances (located in 40 CFR 302.4), while EPCRA notification applies
to the lists of both CERCLA hazardous substances and EPCRA EHSs
(located in 40 CFR part 355 Apps. A and B). When a substance is not a
listed CERCLA hazardous substance (or a federally permitted release and
is above the applicable reportable quantity), but is on the EPCRA EHSs
list, EPCRA section 304(a)(2) provides for notification only if the
release of such substance occurs in a manner as the types of releases
that require notification under CERCLA section 103(a). On the other
hand, if Congress determines that a release occurs in a manner that
does not require notification under CERCLA section 103(a), EPCRA
section 304(a)(2) works to logically exclude that release from EPCRA
reporting.
C. Prior Regulatory Actions
As noted, CERCLA release notification was established to alert
Federal authorities to a release so that the need for a response can be
evaluated and any necessary response undertaken in a timely fashion.
EPCRA release notification supplements CERCLA release notification by
similarly preparing the community at the state and local level. Based
on the criteria for EPCRA section 304 release reporting, and to promote
consistency between CERCLA and EPCRA release notification requirements,
the Agency has incorporated many of CERCLA's release notification
exemptions into the EPCRA release notification regulations through
prior rulemakings. Each of these prior regulatory actions are
summarized below.
1. Exemptions From the Definition of ``release'' Under CERCLA and EPCRA
Both CERCLA and EPCRA define the term ``release.'' Under CERCLA
section 101(22), the term ``release'' generally means ``any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the environment
(including the abandonment or discarding of barrels, containers, and
other closed receptacles containing any hazardous substance or
pollutant or contaminant),'' but also includes specific exclusions for
workplace releases, vehicle emissions, nuclear material releases and
fertilizer application. Similar to the CERCLA workplace exposure
exclusion, EPCRA section 304(a)(4) exempts from reporting any release
which results in exposure to persons solely within the site or sites on
which a facility is located. Though the definition of ``release'' under
EPCRA section 329 mirrors the CERCLA definition, it does not contain
three exclusions provided in the CERCLA section 101(22) definition of
``release'': (1) Emissions from the engine exhaust of a motor vehicle,
rolling stock, aircraft, vessel or pipeline pumping station engine; (2)
releases of source, byproduct or special nuclear material from a
nuclear incident; and (3) the normal application of fertilizer.
However, because the types of releases excluded from CERCLA's
definition of ``release'' do not occur in a manner that would be
reportable under CERCLA section 103(a), these types of releases do not
meet the reporting requirements under EPCRA section 304. See 52 FR
13381, 13384-85 (April 22, 1987) and related Response to Comments
document, April 1987, Docket Number 300PQ. Thus, EPA adopted these
statutory CERCLA exclusions into the EPCRA regulations codified at 40
CFR 355.31.\4\
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\4\ The 1987 rule codified these exemptions at 40 CFR
355.40(a)(2), which was later reorganized into 40 CFR 355.31. See 73
FR 65451 (November 3, 2008).
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2. Exemptions From Immediate Notification Requirements
There are four types of statutory exemptions from the immediate
notification requirements for releases of hazardous substances provided
in CERCLA sections 101(10) and 103(e) and (f). Specifically, these
statutory exemptions include: (1) Federally permitted releases, as
defined in section 101(10); (2) the application of a pesticide product
registered under the Federal Insecticide, Fungicide and Rodenticide Act
or from the handling and storage of such a pesticide product by an
agricultural producer (section 103(e)); (3) certain releases of
hazardous wastes that are required to be reported under the provisions
of the Resource Conservation and Recovery Act and that are reported to
the NRC (section 103(f)(1)); and (4) certain releases that are
determined to be continuous under the provisions of section 103(f)(2).
In the final rulemaking on April 22, 1987 (52 FR 13378) for
emergency planning and release notification requirements under EPCRA,
the Agency adopted exemptions from CERCLA section 103(a) reporting
``based on the language in EPCRA section 304(a) which requires that
releases reportable under that Section occur in a manner which would
require notification under section 103(a) of CERCLA.'' 52 FR 13378,
13381 (April 22, 1987).
Although EPA stated in the April 1987 rulemaking that it was
incorporating CERCLA reporting exemptions into the EPCRA regulations
based on the criteria for EPCRA section 304 release reporting, the
Agency inadvertently omitted the exclusion for the ``application of a
pesticide product registered under the Federal Insecticide, Fungicide,
and Rodenticide Act or to the handling and storage of such a pesticide
product by an agricultural producer'' from the EPCRA section 304
regulations at that time. Thus, in a technical amendment published on
May 24, 1989 (54 FR 22543), EPA added a provision to the EPCRA
regulations in 40 CFR 355.40(a)(2)(iv) (currently codified at 40 CFR
355.31(c)) providing that releases exempted from CERCLA section 103(a)
reporting by CERCLA section 103(e) are also exempt from reporting under
EPCRA section 304. In addition, the May 1989 technical amendment
clarified the language in paragraph (a)(2)(v) of 40 CFR 355.40
(currently codified at 40 CFR 355.31(d)), explaining that this section
exempts from EPCRA section 304 reporting ``any occurrence not meeting
the definition of release under section 101(22) of CERCLA,'' as
``[s]uch occurrences are also exempt from reporting under CERCLA
section 103(a).'' See 54 FR 22543, 22543 (May 24, 1989).
3. Continuous Release Reporting
CERCLA section 103(f) provides relief from the immediate
notification requirements of CERCLA section 103(a) for a release of a
hazardous substance that is continuous and stable in quantity and rate.
Instead, continuous releases are subject to a significantly reduced
reporting requirement under regulations promulgated pursuant to CERCLA
section 103(f). In adopting the implementing regulations for EPCRA in
40 CFR part 355, EPA relied on EPCRA section 304(a)(2) to likewise
exclude continuous releases from the immediate notification requirement
of EPCRA section 304, reasoning: ``Because such releases do not `occur
in a manner' which requires immediate release reporting under section
103(a) of CERCLA, they are also not reportable under section 304 of
[EPCRA].'' See 52 FR 13381, 13384 (April 22, 1987). EPA later
promulgated continuous release reporting regulations for EPCRA that
cross-reference and follow the CERCLA continuous release reporting
regulations, finding that EPCRA release reporting is ``closely tied''
and ``parallel'' to CERCLA release reporting. See 55 FR 30169, 30179
(July 24, 1990).
[[Page 27538]]
At that time, the Agency also reiterated that ``[t]o the extent that
releases are continuous and stable in quantity and rate as defined by
CERCLA section 103(f)(2) . . . , they do not occur in a manner that
requires notification under CERCLA section 103(a)'' and are thus not
subject to the EPCRA section 304 immediate notification requirements.
Id. (emphasis added).
IV. Scope of the Final Rule
The scope of this rulemaking is limited to air emissions from
animal waste (including decomposing animal waste) at a farm. The Agency
is adding this reporting exemption to the EPCRA section 304 emergency
release notification regulations as implemented in 40 CFR part 355,
subpart C, entitled ``Emergency Release Notification.'' The scope of
this rulemaking stems from existing requirements under EPCRA section
304(a)(2) and under CERCLA section 103(e), as amended, and is tied to
the nature or manner of these releases rather than to a specific
substance. In other words, the Agency is not exempting substances
typically associated with animal waste (such as ammonia or hydrogen
sulfide) from reporting. Rather, this rulemaking codifies EPA's
interpretation that air emissions from animal waste at farms are not
subject to EPCRA section 304 release reporting by explicitly exempting
releases from animal waste into the air at farms from reporting. Thus,
the Agency is excluding all releases to the air from animal waste at a
farm from reporting under EPCRA section 304.
This rulemaking does not apply to releases of substances from
animal waste into non-air environmental media, nor to releases into the
air from sources other than animal waste or decomposing animal waste at
a farm. For example, a release from animal waste into water (e.g., a
lagoon breach) or a release from an anhydrous ammonia storage tank into
the air might trigger reporting requirements if the release exceeds the
applicable reportable quantities.
This exemption is added to those currently listed in the EPCRA
regulations codified at 40 CFR 355.31, entitled ``What types of
releases are exempt from the emergency release notification
requirements of this subpart?''
To delineate the scope of this exemption, EPA is finalizing, as
proposed, the definitions of ``animal waste'' and ``farm'' to be
consistent with CERCLA section 103(e). See 40 CFR 355.61 for the full
text of these definitions.
V. Response to Comments
EPA received comments from various organizations, including the
National Association of SARA Title III Program Officials (NASTTPO),
agricultural trade associations, farm bureaus, a university research
center and environmental groups. EPA also received individual comment
letters. This section provides a summary of major comments received and
EPA's responses. A detailed summary of the comments and EPA's responses
are in the Response to Comments document, a copy of which is in the
docket for this rulemaking.
A. General Comments Supporting the Proposed Rule
Several commenters, NASTTPO, agricultural trade associations, the
Department of Agriculture from West Virginia and North Dakota, farm
bureaus and a few private citizens, expressed general support for the
proposed amendment to the EPCRA section 304 release reporting
regulations to add the reporting exemption for air emissions from
animal waste at farms provided in CERCLA section 103(e). In support of
the proposed amendment, commenters stated that the proposed rule lays
out the proper reading of the law and is consistent with Congress'
clear intent that EPCRA section 304 and CERCLA release reporting
requirements should be applied consistently except in certain very
limited circumstances. Some of the commenters stated that EPCRA was
never intended to govern agricultural operations, where emissions from
livestock are a part of everyday life and are certainly not emergency
situations. The natural breakdown of livestock manure does not
constitute an emergency release pursuant to the CERCLA and EPCRA laws.
One commenter stated that EPCRA was created to protect citizens from
disasters such as 1984 Bhopal tragedy, however, animal agriculture
cannot be compared to or included in a similar category designed to
address toxic chemicals, hazardous substances and chemical emergencies.
B. General Comments Opposing the Proposed Rule
EPA received numerous mass mail campaigns which include anonymous
private citizens, citizen & environmental groups opposing the proposed
amendment to add the reporting exemption to the EPCRA section 304
emergency release notification regulations for air emissions from
animal waste at farms. Several commenters strongly urge the EPA to
withdraw the proposed rule, which commenters said would exempt
concentrated animal feeding operations (CAFOs) from EPCRA reporting
requirements so that reports of hazardous substance releases will be
available to the public. Certain members of the Senate Environment and
Public Works (SEPW) Committee strongly urged EPA to withdraw the
proposed rule and faithfully execute and enforce EPCRA and CERCLA
reporting requirements consistent with the laws passed by Congress.
EPA also received individual comment letters opposing the proposed
amendment. One commenter stated that it is the job of the EPA to
regulate sources of hazardous emissions and protect the population from
known sources of these emissions. One commenter asked EPA not to ignore
and vacate their right-to-know by exempting the CAFO's responsibility
to control and report the toxic emissions they are required to control
and report.
EPA's Response: While EPA recognizes commenters' concerns regarding
animal waste emissions, this amendment is based on the statutory
language in EPCRA section 304 and its relationship to CERCLA section
103 release reporting requirements. The basic purpose of emergency
release notification requirements under EPCRA section 304 is for
facilities to inform state and local agencies of accidental releases so
that these agencies can exercise the local emergency response plan if
necessary. This may include, but is not limited to, providing shelter
or evacuating the community to prevent acute exposure from accidental
releases of chemicals. EPCRA section 304 serves as a notification
requirement for chemical accidental releases, it is not intended to
regulate emissions.
In their letter to EPA dated June 1, 2017, the members of NASTTPO
indicated that the release reports for air emissions from animal waste
at farms provide little value to local agencies and first responders,
and are generally ignored. NASTTPO states that open dialogue and
coordination among farms and local agencies can be more effective than
release reporting to address animal waste management at farms. NASTTPO
reiterated this principle in its comment to this rulemaking, dated
December 14, 2018. In addition, regardless of reporting, EPA can still
enforce applicable laws and regulations to address threats to human
health and the environment. This rulemaking does not limit the Agency's
authority under CERCLA sections 104 (response authorities), 106
(abatement actions), 107 (liability), or any other provisions of
[[Page 27539]]
CERCLA to address releases of hazardous substances at farms.
C. Comments on the Proposal To Add Definitions of ``animal waste'' and
``farm''
EPA requested comments on adding the definitions of ``animal
waste'' and ``farm'' to the definition section of EPCRA regulations in
40 CFR part 355.
1. Support
A few commenters supported adding the definitions of ``animal
waste'' and ``farm'' to EPCRA regulations in 40 CFR part 355. These
commenters expressed that the incorporation of the FARM Act's
definitions of ``animal waste'' and ``farm'' into the ECPRA regulations
provides important regulatory clarity to agricultural producers. In
their comments, NASTTPO expressed that EPA has crafted a narrow and
specific exemption from the reporting of releases from animal waste
from farms.
2. Oppose
Many commenters as part of mass mail campaigns as well as few
individual commenters opposed adding the definitions of ``animal
waste'' and ``farm'' to the EPCRA regulations in 40 CFR part 355. One
of the commenters specifically stated that limiting definitions of what
constitutes a farm, or animal waste merely hides problems and that we
should be striving for more transparency on issues concerning emissions
that affect climate and public health, not trying to limit
transparency. Another commenter stated that it is only the large CAFOs
that can release sufficient volumes of toxic pollutants, as ammonia and
hydrogen sulfide into the air which obviously will then end up in our
soil and water.
EPA's Response: On March 23, 2018, the Fair Agricultural Reporting
Method (FARM) Act of 2018 amended CERCLA section 103 to exempt the
reporting of air emissions from animal waste at a farm. See Fair
Agricultural Reporting Method Act, Public Law 115-141 Sec. Sec. 1101-
1103 (2018). The FARM Act includes definitions for ``animal waste'' and
``farm.'' On August 1, 2018, EPA promulgated a final rule to
incorporate the FARM Act legislation into the CERCLA reporting
regulations at 40 CFR part 302 (see 83 FR 37446), including definitions
for ``animal waste'' and ``farm.'' This amendment is based on EPA's
interpretation of EPCRA section 304(a)(2) and its relationship to
CERCLA section 103 as amended by the FARM Act. Thus, the Agency
believes it is reasonable to promulgate the same definitions for
``animal waste'' and ``farm'' into the EPCRA release reporting
regulations to maintain consistency between the statutes and to
effectuate the exemption under EPCRA.
D. Comments on the Legal Rationale for the Proposed Rule
EPA received comments supporting and opposing the legal rationale
for the proposed rule. Below is a summary of the significant comments
received and EPA's responses. Details of these comments and the
Agency's responses are addressed in the Response to Comments document
which can be found in the docket for this rulemaking.
1. Support
A few commenters state that Congress intended for EPCRA reporting
requirements to be consistent with or ``linked to'' CERCLA reporting
requirements, which is evinced by the statutory language in EPCRA
section 304(a)(2). Commenters stated that EPA has the authority to
amend the EPCRA emergency release notification regulations to include
the reporting exemption for air emissions from animal waste at farms
provided in CERCLA section 103(e). Commenters also note that an
analysis prepared by the Congressional Research Service (CRS) at the
request of the Senate Committee on Environment and Public Works (EPW)
supports EPA's interpretation as presented in the proposed rule. In
sum, commenters state the proposed rule is a sound and lawful
codification based on the statutory language in EPCRA and CERCLA.
2. Oppose
EPA received comments with a wide range of arguments opposing the
Agency's legal rationale for the proposed rule. The following is a
brief summary of comments on each topic presented in the preamble to
the proposed rule. Details of comments received and the Agency's
response can be found in the Response to Comments document at the
docket for this rulemaking.
i. Statutory Text
A few commenters argue the proposed rule is in direct contravention
of the plain language of EPCRA and CERCLA and is therefore
``fundamentally flawed'' and ``illegal.'' One commenter argues that the
phrase ``occurs in a manner'' makes it clear that even if a release is
not reported under CERCLA, EPCRA reporting would still be required if
the ``factual'' circumstances of the release would otherwise require
CERCLA reporting. The commenter also stated that EPA arbitrarily based
its interpretation of ``occurs in a manner'' on the method or type of
release (i.e., into the air) rather than on the substance emitted.
Additionally, this commenter argues that the statute provides no
support for such an interpretation. Another commenter expressed that
the plain language of EPCRA is unambiguous in that it prohibits EPA
from exempting animal feeding operations from EPCRA's reporting
requirements; but even if there was some ambiguity in the statute, the
proposed rule is arbitrary and capricious because EPA has not provided
a reasoned explanation to justify its departure from the statute or
supported that explanation with substantive record evidence.
EPA's Response: EPA's interpretation is lawful and based on the
plain language of EPCRA and CERCLA. EPA reasonably interpreted the
operative language in EPCRA section 304(a)(2) as requiring EPCRA
reporting when the release ``occurs in a manner'' which would require
notification under CERCLA section 103(a). Because air emissions from
animal waste at farms do not ``occur in a manner'' that would require
notification under CERCLA section 103(a), such releases are not
reportable under EPCRA section 304(a)(2).
EPA disagrees with commenters' analysis that reporting of these
types of air emissions would still be required under EPCRA so long as
they are factually releases under CERCLA. EPA understands these
comments to propose that the ``occurs in a manner'' language in EPCRA
section 304(a)(2) means that a release only has to satisfy the
definition of a ``release'' under CERCLA to be eligible for EPCRA
reporting. Such a reading is unnecessary as the definition of a
``release'' in EPCRA already mirrors the definition of a ``release'' in
CERCLA. (see the definition of ``release'' under EPCRA section 329(8)
and CERCLA section 101(22). While the CERCLA definition may focus more
on hazardous substances and the EPCRA definition focusses more on
extremely hazardous substances and hazardous or toxic chemicals, both
definitions list similar types, ways, or manners of a release.
EPA believes it is not a full and fair reading of EPCRA section
304(a)(2) to say that EPCRA reporting would still be necessary if a
release to the environment qualifies as a release to the environment
under CERCLA, regardless of whether reporting is legally required under
CERCLA. An EPCRA release into the environment already follows the
definition of a release into the environment under CERCLA. Applied to
the present rulemaking, emissions into
[[Page 27540]]
the air from animal waste at farms already qualify as releases into the
environment under both statutes (i.e., they are ``emitting'' or
``escaping'' under the statutory definitions). Further analysis of what
factually is a release to the environment does not shed light on the
Congressional intent of EPCRA section 304(a)(2) and does not follow the
plain language of the statute, which requires, in part, that a release
occurs in a manner which would require notification under CERCLA
section 103(a).
In enacting the FARM Act, the Senate EPW requested an analysis from
the Congressional Research Service (CRS) of the potential effects of
the FARM Act's amendments to CERCLA and EPCRA release reporting. The
CRS issued two memorandums, March 7, 2018 (an overview of CERCLA and
EPCRA release reporting, statutory exemptions, the 2008 CERCLA/EPCRA
rule and resulting litigation, etc.) and March 13, 2018 (``Supplemental
Analysis: Fair Agricultural Reporting Method Act/FARM Act (S.2421'').
CRS agreed with this interpretation in its memorandum dated March 7,
2018, which states:
[T]he phrase ``occurs in a manner'' generally has been
implemented over time to mean the nature of the release in terms of
how the substance enters the environment. [CRS March 7, 2018
memorandum page 6].
The next question is whether the release would require notification
under CERCLA section 103(a). As discussed earlier, the FARM Act
exempted only releases of a certain kind or manner--air emissions from
animal waste at farms--from notification under CERCLA section 103(a).
Accordingly, these types of releases do not occur in a manner that
would require notification under CERCLA section 103(a). Because the
third criteria of EPCRA section 304(a)(2) is not met, no reporting
under EPCRA is required.
EPA believes its interpretation follows the plain language of the
statute and carries out the Congressional intent of EPCRA section
304(a)(2).
ii. Legislative History and Prior Agency Actions
Commenters opposing the proposal argue that the legislative history
of the FARM Act makes it clear that Congress intended for EPCRA
reporting to continue notwithstanding the FARM Act's CERCLA exemption.
The letter from certain Senate EPW members cites to testimony by
Senators and witnesses explaining that the FARM Act makes no changes to
reporting requirements for releases of extremely hazardous substances
under EPCRA. Commenters assert that the proposed rule violates the
legislative intent of the FARM Act. One commenter argues that EPCRA's
legislative history does not support EPA's prior actions exempting
certain releases from EPCRA reporting, such as the CERCLA continuous
release provision.
EPA's Response: In enacting the FARM Act, Congress amended the
CERCLA section 103 reporting requirements; it did not amend the EPCRA
section 304 reporting requirements. While the FARM Act legislative
history has relevance with respect to the statutory changes to
reporting under CERCLA section 103, EPA considered the text of EPCRA
section 304 and its legislative history in issuing this rule. As stated
throughout the proposed rule, EPA has interpreted EPCRA section
304(a)(2) as carrying over CERCLA reporting exemptions related to the
manner or nature of release. In this way, EPCRA section 304(a)(2)
promotes consistency between EPCRA and CERCLA reporting. The
legislative history of the FARM Act does not address the legislative
history of EPCRA, and if Congress wished to ensure that the exemption
in the FARM Act did not carry over into EPCRA reporting, it could have
expressly enacted such statutory text, but it did not.
The legislative history of the FARM Act is correct to the extent
that the amendment does not exempt all releases from animal waste at
farms from reporting under EPCRA. Rather, the amendment only exempts
certain types of releases, and this rule tracks the FARM Act to provide
that a limited type of release, air emissions from animal waste at
farms, are not subject to reporting under EPCRA. This rule does not
apply to releases of substances from animal waste into non-air
environmental media, nor to releases into the air from sources other
than animal waste or decomposing animal waste at a farm. For example, a
release from animal waste into water (e.g., a lagoon breach) or a
release from an anhydrous ammonia storage tank into the air might
trigger reporting requirements if the release exceeds the applicable
reportable quantities. This is because the releases occur in a manner
that require reporting under CERCLA because they are releases into a
non-air media or they are not emissions from animal waste.
The proposed rule also explains how, in the 1986 committee
conference report addressing EPCRA, Congress expressed its intent that
EPCRA release reporting be aligned with CERCLA reporting. As an
example, the committee conference report explains how continuous
releases which are not subject to immediate reporting requirements
under CERCLA should likewise not be subject to EPCRA reporting. As
result, EPA promulgated reduced reporting requirements that cross-
reference and follow the CERCLA reduced reporting requirements for
continuous releases. In this manner, EPA reasonably followed
Congressional intent to state that numerous types of releases are not
subject to reporting under EPCRA when reporting wasn't required under
CERCLA, including vehicle emissions, the normal application of
fertilizer, and the application of registered pesticide products (see
the Federal Register notice for the proposed rule for a more detailed
discussion).
The legislative history of the FARM Act's amendment to CERCLA did
not nullify the statutory text in EPCRA section 304(a)(2). EPA
reasonably interpreted that text and the proposed rule is supported by
EPCRA's legislative history.
E. Other Comments
EPA also received adverse comments on the rulemaking and its impact
on environment and public health. These commenters expressed that the
proposed exemption will prevent local emergency responders from
accessing information to protect the community. Some commenters assert
that the proposed rule is arbitrary and capricious because the Agency
failed to consider environmental justice, the National Environmental
Policy Act, and the Endangered Species Act prior to issuing the
proposed rule.
EPA's Response: Although these comments are outside the scope of
this rulemaking, the Agency's response to these comments are provided
in the Response to Comments document, which can be found in the docket
to this rulemaking.
F. Request for Public Comment Period Extension & Public Hearings
Three commenters, a university research organization, mass mail
campaign and community group, requested EPA to extend the public
comment period for the proposed rule. These commenters stated that the
proposed rule may have significant consequences on the ability of local
governments and their residents to protect their health and wellbeing,
none of which seems to have been considered by EPA during the
preparation of the proposed rule. Additionally, these commenters
expressed that they need an additional 60 days to collect information
from studies on health and
[[Page 27541]]
environmental impacts of CAFO air emissions on surrounding communities
as rulemaking docket does not contain any scientific studies or other
documents about toxic emissions from CAFOs and their impact on
surrounding communities.
Two groups, mass mail campaigns and community organization,
requested public hearings on the proposed rule stating that given the
impact that the proposed rule will have on communities across the
country, including a disproportionate number of low-income and minority
communities, EPA should schedule at least three public hearings in
various locations across the country to ensure adequate public
participation in the rulemaking process. EPA should hold these hearings
in locations near to communities affected by CAFOs, for example,
communities in North Carolina, Maryland, Iowa, or Oklahoma, to name a
few.
EPA's Response: EPA believes that the 30-day comment period was
appropriate. The proposed rule is based on a reasonable interpretation
of the statutory language in EPCRA section 304(a)(2) and its
relationship with CERCLA section 103 as amended by the FARM Act. EPA's
rationale is set out in the Federal Register notice for the proposed
rule and all the supporting documents the Agency relied on are
available in the associated docket.
The proposed rule is not based on health or environmental risk, so
no such associated studies are necessary. Because the proposed rule is
based on a statutory interpretation, the record is not extensive, and
therefore EPA did not believe such an extension should be granted. EPA
also generally set out its statutory interpretation in the guidance
document entitled ``How does the Fair Agricultural Reporting Method
(FARM) Act impact reporting of air emissions from animal waste under
CERCLA Section 103 and EPCRA Section 304?'' dated April 2018. That
guidance document states: ``EPA intends to conduct a rulemaking to
address the impact of the FARM Act on the reporting of air emissions
from animal waste at farms under EPCRA.'' Accordingly, the commenters
were provided a meaningful opportunity to comment and no extensions
were necessary to comment on EPA's statutory interpretation. Similarly,
no public meetings or hearing were required or deemed necessary to
allow for comment on EPA's interpretation.
VI. Statutory and Executive Orders
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not subject to Executive Order 13771 because this
final rule does not result in additional costs.
C. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. The Agency is codifying a provision exempting farms from
reporting air releases from animal waste under EPCRA section 304
release notification regulations.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. 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, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. Consistent with the Agency's
interpretation that air emissions from animal waste at farms are not
subject to EPCRA section 304 release reporting, this final rule
explicitly exempts these types of releases from EPCRA reporting and
would not result in additional costs.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector. The Agency is
amending the EPCRA section 304 release notification regulations to add
the reporting exemption for air emissions from animal waste at farms
provided in CERCLA section 103(e), as amended.
F. Executive Order 13132: Federalism
This action 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.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. The EPA is amending the EPCRA section 304
release notification regulations to add the reporting exemption for air
emissions from animal waste at farms provided in CERCLA section 103(e),
as amended. Thus, Executive Order 13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of covered regulatory action in section 2-
202 of the Executive Order. This final rule is not based on health or
environmental effect, rather, it is intended to maintain consistency
between EPCRA section 304 and CERCLA section 103(a) emergency release
notification requirements by exempting reporting of air emissions from
animal waste at farms.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. The EPA is amending the EPCRA section
304 release notification regulations to add the reporting exemption for
air emissions from animal waste at farms provided in CERCLA section
103(e), as amended.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
[[Page 27542]]
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action is not subject to Executive Order
12898 (59 FR 7629, February 16, 1994) because it does not establish an
environmental health or safety standard. EPA has no authority under
EPCRA to prevent or reduce emissions from certain facilities or their
operations. The rule presents a statutory interpretation intended to
maintain consistency between EPCRA section 304(a) and CERCLA section
103 release notification requirements and does not have any impact on
human health or the environment.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 355
Environmental protection, Chemicals, Disaster assistance, Hazardous
substances, Hazardous waste, Natural resources, Penalties, Reporting
and recordkeeping requirements, Superfund.
Dated: June 4, 2019.
Andrew R. Wheeler,
Administrator.
For the reasons set forth in the preamble, EPA amends 40 CFR part
355 as follows:
PART 355--EMERGENCY PLANNING AND NOTIFICATION
0
1. The authority citation for part 355 continues to read as follows:
Authority: Sections 302, 303, 304, 325, 327, 328, and 329 of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA)
(42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 11049).
0
2. Amend Sec. 355.31 by adding paragraph (g) to read as follows:
Sec. 355.31 What types of releases are exempt from the emergency
release notification requirements of this subpart?
* * * * *
(g) Air emissions from animal waste (including decomposing animal
waste) at a farm.
0
3. Amend Sec. 355.61 by adding in alphabetical order definitions for
``Animal waste'' and ``Farm'' to read as follows:
Sec. 355.61 How are key words in this part defined?
Animal waste means feces, urine, or other excrement, digestive
emission, urea, or similar substances emitted by animals (including any
form of livestock, poultry, or fish). This term includes animal waste
that is mixed or commingled with bedding, compost, feed, soil, or any
other material typically found with such waste.
* * * * *
Farm means a site or area (including associated structures) that--
(1) Is used for--
(i) The production of a crop; or
(ii) The raising or selling of animals (including any form of
livestock, poultry, or fish); and
(2) Under normal conditions, produces during a farm year any
agricultural products with a total value equal to not less than $1,000.
* * * * *
[FR Doc. 2019-12411 Filed 6-12-19; 8:45 am]
BILLING CODE 6560-50-P