Potential Future Regulation for Emergency Release Notification Requirements for Animal Waste Air Emissions Under the Emergency Planning and Community Right-to-Know Act (EPCRA), 80222-80237 [2023-25270]
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules
B. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
PRA. This action contains no provisions
constituting a collection of information
under the PRA.
C. 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. This action will not
impose any requirements on small
entities.
D. Unfunded Mandates Reform Act
(UMRA)
E. 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.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. Thus, Executive Order
13175 does not apply to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
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The EPA interprets Executive Order
13045 as applying only 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 action is not
subject to Executive Order 13045
because it does not concern an
environmental health risk or safety risk.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
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This rulemaking does not involve
technical standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this action does
not have disproportionately high and
adverse human health or environmental
effects on minority populations, lowincome populations and/or indigenous
peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
List of Subjects in 40 CFR Part 16
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.
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I. National Technology Transfer and
Advancement Act
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Government employees, Privacy.
Kimberly Y. Patrick,
Principal Deputy Assistant Administrator,
Office of Mission Support.
For the reasons stated in the
preamble, title 40, chapter I, part 16 of
the Code of Federal Regulations is
proposed to be amended as follows:
PART 16—IMPLEMENTATION OF
PRIVACY ACT OF 1974
1. The authority citation for part 16
continues to read as follows:
■
Authority: 5 U.S.C. 301, 552a (as revised).
2. Amend § 16.12 by:
a. Revising paragraphs (a)(1), (a)(4)(i),
(a)(5) introductory text, and (b)(1);
■ b. Adding paragraph (b)(4)(iii); and
■ c. Revising paragraph (b)(5)
introductory text.
The revisions and addition read as
follows:
■
■
§ 16.12
Specific exemptions.
(a) * * *
(1) Systems of records affected. (i)
EPA–17 Online Criminal Enforcement
Activities Network (OCEAN).
(ii) EPA–21 External Compliance Case
Tracking System (EXCATS).
(iii) EPA–30 Inspector General
Enterprise Management System (IGEMS)
Hotline Module.
(iv) EPA–40 Inspector General
Enterprise Management System (IGEMS)
Investigative Module.
(v) EPA–63 eDiscovery Enterprise
Tool Suite.
(vi) EPA–79 NEIC Master Tracking
System.
(vii) EPA–100 OIG Data Analytics
Enterprise.
(viii) EPA–83 Personnel Security
System (PSS) 2.0.
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(4) * * *
(i) EPA systems of records 17, 30, 40,
63, 79, and 100 are exempted from the
following provisions of the PA, subject
to the limitations set forth in 5 U.S.C.
552a(k)(2): 5 U.S.C. 552a(c)(3); (d); and
(e)(1). EPA system of records 21 is
exempt from the following provisions of
the PA, subject to limitations set forth
in 5 U.S.C. 552a(k)(2): 5 U.S.C
552a(c)(3), (d), and (e)(1). EPA system of
records 83 is exempt from the following
provisions of the PA, subject to the
limitations set forth in 5 U.S.C.
552a(k)(2): 5 U.S.C. 552a(c)(3); (d); and
(e)(1).
*
*
*
*
*
(5) Reasons for exemption. EPA
systems of records 17, 21, 30, 40, 63, 79,
83, and 100 are exempted from the
provisions of the PA in paragraph (a)(4)
of this section for the following reasons:
*
*
*
*
*
(b) * * *
(1) Systems of records affected. (i)
EPA 36 Research Grant, Cooperative
Agreement, and Fellowship Application
Files.
(ii) EPA 40 Inspector General
Enterprise Management System (IGEMS)
Investigative Module.
(iii) EPA 83 Personnel Security
System (PSS) 2.0.
(iv) EPA 100 OIG Data Analytics
Enterprise.
*
*
*
*
*
(4) * * *
(iii) EPA 83 is exempted from the
following provisions of the PA, subject
to the limitations of 5 U.S.C.
552(a)(k)(5): 5 U.S.C. 552a(c)(3), and (d).
*
*
*
*
*
(5) Reasons for exemption. EPA 36,
40, 83, and 100 are exempted from the
above provisions of the PA for the
following reasons:
*
*
*
*
*
[FR Doc. 2023–24668 Filed 11–16–23; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 355
[EPA–HQ–OLEM–2023–0142; FRL–10285–
01–OLEM]
RIN 2050–AH31
Potential Future Regulation for
Emergency Release Notification
Requirements for Animal Waste Air
Emissions Under the Emergency
Planning and Community Right-toKnow Act (EPCRA)
Environmental Protection
Agency (EPA).
AGENCY:
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules
Advance Notice of Proposed
Rulemaking (ANPRM).
ACTION:
The Environmental Protection
Agency (EPA or Agency) is soliciting
information pertaining to and is
requesting comments to assist in the
potential development of regulations to
reinstate the reporting of animal waste
air emissions at farms under the
Emergency Planning and Community
Right-to-Know Act (EPCRA). The
Agency is soliciting comments under
five general categories: health impacts;
implementation challenges; costs and
benefits; small farm definition and
potential reporting exemption; and
national report on animal waste air
emissions. Requiring reporting of
animal waste air emissions may advance
the community right-to-know aspect of
EPCRA by providing the public with
information that may impact their
health and the environment. This
information may advance EPA’s
environmental justice goals of
increasing the awareness of the
potential impact these emissions have
on communities with environmental
justice concerns. We solicit comments
on all aspects of this potential action.
DATES: Comments must be received on
or before February 15, 2024.
ADDRESSES: You may send comments,
identified by Docket ID No. EPA–HQ–
OLEM–2023–0142, by any of the
following methods:
• Federal eRulemaking Portal:
https://www.regulations.gov/ (our
preferred method). Follow the online
instructions for submitting comments.
• Mail: U.S. Environmental
Protection Agency, EPA Docket Center,
EPA–HQ–OLEM–2023–0142 Docket,
Mail Code 28221T, 1200 Pennsylvania
Avenue NW, Washington, DC 20460.
• Hand Delivery or Courier: EPA
Docket Center, WJC West Building,
Room 3334, 1301 Constitution Avenue
NW, Washington, DC 20004. The Docket
Center’s hours of operations are 8:30
a.m.–4:30 p.m., Monday–Friday (except
Federal Holidays).
Instructions: All submissions received
must include the Docket ID No. for this
rulemaking. Comments received may be
posted without change to https://
www.regulations.gov/, including any
personal information provided. For
detailed instructions on sending
comments and additional information
on the rulemaking process, see the
‘‘Public Participation’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT:
William Noggle, U.S. Environmental
Protection Agency, Office of Emergency
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SUMMARY:
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Management, 1200 Pennsylvania
Avenue NW, Washington, DC 20460;
202–566–1306; noggle.william@epa.gov.
SUPPLEMENTARY INFORMATION:
Organization of this document. The
information in this preamble is
organized as follows:
I. Public Participation
A. Written Comments
B. Comment Headings
II. General Information
A. Does this ANPRM apply to me?
B. What is the purpose of this ANPRM?
C. Legal authority
III. Background
A. Overview
B. Release Reporting Requirements Under
CERCLA and EPCRA
C. Continuous Release Reporting (CRR)
Regulations
D. Regulatory and Legal Background
1. 2008 CERCLA/EPCRA Reporting
Exemption Rule and Related Litigation
2. 2018 FARM Act and Related 2018
CERCLA Rule
3. 2019 EPCRA Rule and Related Litigation
4. Executive Order 13990, January 20, 2021
IV. What information is EPA seeking?
A. Health Impacts From Animal Waste Air
Emissions
B. Implementation Challenges
1. National Air Emissions Monitoring
Study (NAEMS)
2. Emissions Calculator and Guidance on
Estimating Amounts of Air Releases
3. Grazing Operations
4. Use of Continuous Release Reporting by
Farms
5. Citizen Suits
6. Privacy Concerns
7. EPCRA National Database
C. Costs and Benefits
1. Estimated Regulated Universe
2. Burden Estimates
3. Environmental Justice and Community
Right-to-Know
D. Small Farms
1. Potential Reporting Exemption for
‘‘Small Farms’’
2. Defining ‘‘Small Farms’’
3. Animal Waste Management Methods for
‘‘Small Farms’’
4. Health Impacts From ‘‘Small Farms’’
5. State, Tribal, and Local Emergency
Planners and Responders Use of ‘‘Small
Farm’’ Animal Waste Air Emissions
Information
6. Adjusting the RQs of Ammonia and
Hydrogen Sulfide for Animal Waste Air
Emissions
E. National Report on Animal Waste
Emissions
V. Request for Comment and Additional
Information
VI. What are the next steps EPA will take?
VII. Statutory and Executive Order Reviews
I. Public Participation
A. Written Comments
Submit your comments, identified by
Docket ID No. EPA–HQ–OLEM–2023–
0142, at https://www.regulations.gov
(our preferred method), or the other
methods identified in the ADDRESSES
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section. Once submitted, comments
cannot be edited or removed from the
docket. The EPA may publish any
comment received to its public docket.
Do not submit to EPA’s docket at
https://www.regulations.gov any
information you consider to be
Confidential Business Information (CBI),
Proprietary Business Information (PBI),
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). Please visit
https://www.epa.gov/dockets/
commenting-epa-dockets for additional
submission methods; the full EPA
public comment policy; information
about CBI, PBI, or multimedia
submissions; and general guidance on
making effective comments.
B. Comment Headings
Commenters should review the
discussions in the preamble and are
encouraged to comment on any matter
that is addressed by this ANPRM. For
comments submitted through postal
mail or https://www.regulations.gov,
EPA is requesting that commenters
identify their comments on specific
issues by using the appropriate number
and comment headings listed below to
make it simpler for the Agency to
process your comment. If your comment
covers multiple issues, please use all the
heading numbers and names that relate
to that comment. These are the
comment headings for specific issues in
this ANPRM:
#1—Health Impacts (see Section IV.A)
#2—Emissions Estimating Methodologies
(see Section IV.B.1)
#3—2005 Compliance Agreement (see
Section IV.B.1)
#4—Emissions Calculator—General (see
Section IV.B.2)
#5—Emissions Calculator—Continuous
Release Reporting (see Section IV.B.2)
#6—Accuracy of Reported Release Quantity
(see Section IV.B.2)
#7—Turkey and Beef Contribution Factors
(see Section IV.B.2)
#8—Estimating Emissions from Less
Common Species (see Section IV.B.2)
#9—Estimating Emissions from Atypical
Farming Operations (see Section IV.B.2)
#10—Cutoffs for Estimating (see Section
IV.B.2)
#11—Other Guidance (see Section IV.B.2)
#12—Grazing Operations (see Section IV.B.3)
#13—Application of Continuous Release
Reporting (see Section IV.B.4)
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules
#14—Application of Upper and Lower
Bounds (see Section IV.B.4)
#15—Exceptions to Continuous Release
Reporting (see Section IV.B.4)
#16—Benefit of Continuous Release
Reporting Data (see Section IV.B.4)
#17—Continuous Release Reporting—Other
(see Section IV.B.4)
#18—Citizen Suits—Wholly Past Violations
(see Section IV.B.5)
#19—Citizen Suit Cost and Benefits (see
Section IV.B.5)
#20—Citizen Suit—Guidance (see Section
IV.B.5)
#21—Citizen Suit—Other (see Section IV.B.5)
#22—Privacy Concerns (see Section IV.B.6)
#23—Privacy Concerns—Other (see Section
IV.B.6)
#24—National EPCRA Database—General
(see Section IV.B.7)
#25—National Database—Managing Right-toKnow Data (see Section IV.B.7)
#26—National Database—Managing Reports
from Facilities (see Section IV.B.7)
#27—National Database—Animal Waste Air
Emissions Reporting (see Section IV.B.7)
#28—National Database—Facility Benefits
and Disadvantages (see Section IV.B.7)
#29—National Database—Managing FOIA
Requests (see Section IV.B.7)
#30—National Database—Other (see Section
IV.B.7)
#31—Regulated Universe—Number of Farms
Reporting (see Section IV.C.1)
#32—Burden—Reporting Farms (see Section
IV.C.2)
#33—Burden—Non-Reporting Farms (see
Section IV.C.2)
#34—Burden—Small Farms (see Section
IV.C.2)
#35—Burden—Qualitative Costs (see Section
IV.C.2)
#36—Benefits—Environmental Justice (see
Section IV.C.3)
#37—Indirect Benefits (see Section IV.C.3)
#38—Small Farm Exemption—General (see
Section IV.D.1)
#39—Small Farm Exemption—Criteria (see
Section IV.D.1)
#40—Small Farm Definition (see Section
IV.D.2)
#41—Small Farm—Waste Handling (see
Section IV.D.3)
#42—Small Farm—Health Impacts (see
Section IV.D.4)
#43—State, Local, and Tribal Impacts (see
Section IV.D.5)
#44—RQ Adjustment—General (see Section
IV.D.6)
#45—Industry-Specific RQ Adjustment (see
Section IV.D.6)
#46—National Report based on USDA or
State Data (see Section IV.E)
#47—Other Technology for Estimating Air
Releases (see Section IV.E)
#48—Other Solutions (see Section IV.E)
Other Comments (Section V)
II. General Information
A. Does this ANPRM apply to me?
A list of entities that could be affected
by a potential future rulemaking
include, but are not limited to:
TABLE 1—ENTITIES POTENTIALLY AFFECTED BY A FUTURE RULEMAKING
Type of entity
Industry .................................
State and/or Local Governments.
Examples of potentially affected entities
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.
NAICS = North American Industry Classification System.
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This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by a future rulemaking. 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 Is the purpose of this ANPRM?
On June 13, 2019, the Agency
published a final rule (84 FR 27533)
which exempted reporting of animal
waste air emissions under EPCRA for all
farms, regardless of size. The Agency is
reconsidering that final rule and
through this ANRPM is seeking
information that may assist with a
potential future rulemaking requiring
farms to report air emissions of
extremely hazardous substances from
animal waste under EPCRA.
EPA is specifically soliciting
information on the following five topics:
(1) health impacts; (2) implementation
challenges; (3) costs and benefits; (4)
small farm definition and reporting
exemption, and (5) a national report on
animal waste air emissions. Information
collected during the public comment
period for this ANPRM will better
inform the Agency on whether to pursue
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under EPCRA, which was enacted as
Title III of the Superfund Amendments
and Reauthorization Act (SARA) of 1986
(Pub. L. 99–499). Any future rulemaking
would fall 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).
a proposed rule, as well as assist the
Agency on how best to implement the
reinstating of EPCRA reporting from
farms, if such a rule is finalized. The
Agency is also requesting comments and
information on any other topics relevant
to conducting a future rulemaking on
EPCRA reporting of air emissions from
animal waste on farms. The solicitation
of information in this ANPRM does not
necessarily mean any action on farms
will occur.
The solicitation of comment on these
matters should not be read as EPA
suggesting legal ambiguity in the
relevant regulations or recognizing a
particular interpretation by EPA of
either EPCRA, the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
(CERCLA), or their implementing
regulations. For purposes of this
comment solicitation, exploration of
ways to further clarify particular aspects
of the existing regulations should not be
viewed as an indication that the existing
language is inadequate, or in any way be
seen to undermine the Agency’s ability
to enforce these regulations as written.
Animal waste air emissions reporting
from farms has been subject to a
complex history of EPA regulatory
actions, subsequent legal challenges,
and Congressional legislation. Animal
waste can generate potentially harmful
air emissions of ammonia and hydrogen
sulfide,1 which are listed as hazardous
substances (HSs) under CERCLA and as
extremely hazardous substances (EHSs)
under EPCRA. The following sections
provide a discussion of the regulatory
reporting requirements and the history
of prior regulatory and legal actions
leading to this ANPRM.
C. Legal authority
This advanced notice of proposed
rulemaking (ANPRM) is being issued
1 Air emissions from animal wastes on farms are
generally a result of decomposition of the animal
waste.
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III. Background
A. Overview
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules
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B. Release Reporting Requirements
under CERCLA and EPCRA
CERCLA and EPCRA are separate, but
interrelated, environmental statutes that
work together to provide notification of
qualifying releases of HSs and EHSs to
the appropriate government authorities.
In general, CERCLA section 103
provides for notice to federal officials,
whereas EPCRA section 304 provides
for notice to state, tribal, and local
officials. Section 103 of CERCLA
requires the person in charge of a vessel
or facility to immediately notify the
National Response Center (NRC) 2 when
there is a release of an HS, as defined
under CERCLA section 101(14), in an
amount equal to or greater than the
reportable quantity (RQ) for that
substance within a 24-hour period.
These requirements are codified in the
CERCLA regulations at 40 CFR part 302.
In addition to these CERCLA reporting
requirements, EPCRA section 304
generally requires owners or operators
of certain facilities 3 to immediately
notify state, tribal and local authorities
when there is a release of an EHS, as
defined under EPCRA section 302, or of
a CERCLA hazardous substance in an
amount equal to or greater than the RQ
for that substance within a 24-hour
period. These requirements are codified
in the EPCRA regulations at 40 CFR part
355 subpart C.
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), the federal
government’s framework for responding
to both oil discharges and hazardous
substance releases. Related, notice
under EPCRA is given to the State or
Tribal Emergency Response
Commission (SERC or TERC) 4 for any
2 NRC is a part of the federally established
National Response System and staffed 24 hours a
day by the U.S. Coast Guard. It is the designated
federal point of contact for reporting all oil,
chemical, radiological, biological and etiological
discharges into the environment, anywhere in the
United States and its territories.
3 The EPCRA definition of facility at 40 CFR
355.16: means all buildings, equipment, structures,
and other stationary items that are located on a
single site or on contiguous or adjacent sites and
that are owned or operated by the same person (or
by any person that controls, is controlled by, or
under common control with, such person). Facility
includes manmade structures, as well as all natural
structures in which chemicals are purposefully
placed or removed through human means such that
it functions as a containment structure for human
use. For purposes of emergency release notification,
the term includes motor vehicles, rolling stock, and
aircraft.
4 SERC is defined at 40 CFR 355.61 as: the State
Emergency Response Commission for the state in
which the facility is located except where the
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state or tribal region likely to be affected
by the release and to the community
emergency coordinator for the Local or
Tribal Emergency Planning Committee
(LEPC or TEPC) 5 for any area likely to
be affected by the release so that state,
tribal and local authorities have
information to help protect the
community. As stated in the title of the
statute, EPCRA also has an important
community right-to-know component
that provides for public availability of
release notifications pursuant to EPCRA
section 324.
Release reporting under EPCRA
depends, in part, on whether reporting
is required under CERCLA. Specifically,
EPCRA section 304(a) provides for
reporting under the following three
release scenarios:
1. 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).
2. 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).
3. 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).
C. Continuous Release Reporting (CRR)
Regulations
There are situations where known or
anticipated releases may be subject to
significantly reduced reporting
requirements, rather than the immediate
facility is located in Indian Country, in which case,
SERC means the Emergency Response Commission
for the tribe under whose jurisdiction the facility is
located. In the absence of a SERC for a state or
Indian Tribe, the governor or the chief executive
officer of the tribe, respectively, shall be the SERC.
Where there is a cooperative agreement between a
state and a tribe, the SERC shall be the entity
identified in the agreement.
5 LEPC is defined at 40 CFR 355.61 as: the Local
Emergency Planning Committee appointed by the
State Emergency Response Commission. TEPCs are
appointed by the TERCs.
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or occurrence-based reporting of
CERCLA section 103(a) and EPCRA
section 304(a) as outlined above.
CERCLA section 103(f) and its attendant
regulations at 40 CFR 302.8 provide
such relief for a release of a hazardous
substance that is continuous and stable
in quantity and rate. Similarly, EPA
relied on EPCRA section 304(a)(2) to
promulgate analogous reduced reporting
regulations for continuous releases
under EPCRA at 40 CFR 355.32. Those
EPCRA regulations instruct a facility to
rely on and follow, in part, the related
CERCLA regulations at 40 CFR 302.8. As
discussed further in this document, the
continuous release reporting option is
meant to save facilities and response
authorities from the unnecessary burden
of notification each time a repeated
release—that is continuous and stable—
occurs.
Under CERCLA section 103(a),
regulated entities are required to
immediately report releases of CERCLA
hazardous substances that meet or
exceed the RQ threshold. In lieu of
reporting for each release, however,
certain continuous releases can qualify
for reduced reporting (see 40 CFR
302.8), which allows the regulated
entity to only provide the following:
(1) Initial telephone notification made
to the NRC;
(2) Initial 30-day written notification
to the EPA;
(3) One-year follow-up written
notification to the EPA;
(4) Notification to the EPA of a change
in the composition or source(s) of the
release or in the other information
submitted in the initial written
notification; and
(5) Notification to the NRC of any
increase in the quantity of the
hazardous substance being released
during any 24-hour period, which
represents a statistically significant
increase (SSI).
Reduced release reporting provisions
are also available under EPCRA, which
requires reporting of CERCLA hazardous
substances and EPCRA extremely
hazardous substances. Under the
EPCRA continuous release reporting
regulations codified at 40 CFR 355.32,
which cross-reference the CERCLA
regulations at 40 CFR 302.8, facilities
are required to report only items 1, 2,
and 5 (from the list above) to their SERC
or TERC and LEPC or TEPC. Any
changes in source or composition (item
4) may be considered a new release,
which is also required to be reported to
the SERC or TERC and the LEPC or
TEPC. A first anniversary report (item 3)
is not required under EPCRA section
304.
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CERCLA and the implementing
regulations of both CERCLA and
EPCRA 6 and their implementing
regulations define whether a release
qualifies for continuous release
reporting. The continuous release
regulations in 40 CFR 302.8(d)(1)
provide that a facility can establish a
continuous release by ‘‘[u]sing release
data, engineering estimates, knowledge
of operating procedures, or best
professional judgment to establish the
continuity and stability of the release.’’
There is no specific requirement for
release monitoring or collecting release
data if a facility is relying on
engineering estimates, best professional
judgment, or knowledge of operations.
The definitions in the continuous
release regulations in 40 CFR 302.8(b)
provide further assistance to determine
what qualifies as a continuous release.
There, a continuous release is defined as
a release ‘‘that occurs without
interruption or abatement or that is
routine, anticipated, and intermittent
and incidental to normal operations or
treatment processes.’’ A routine release
is defined as a release ‘‘that occurs
during normal operating procedures or
processes.’’ And the phrase ‘‘stable in
quantity and rate’’ is defined as a release
‘‘that is predictable and regular in
amount and rate of emission.’’
The continuous release regulations
also include reporting the normal range
of releases defined in 40 CFR 302.8 as
‘‘all releases (in pounds or kilograms) of
a hazardous substance reported or
occurring over any 24-hour period
under normal operating conditions
during the preceding year.’’ The upper
and lower bounds of the normal range
of the release are reported in the 30-day
written report under EPCRA.
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D. Regulatory and Legal Background
As previously noted, the history of
release reporting for air emissions from
animal waste at farms is long and
complex. The following summary of
events leading to this ANPRM is not
meant to be exhaustive. Publicly
available documents cited below and
included in the docket provide further
background information.
1. 2008 CERCLA/EPCRA Reporting
Exemption Rule and Related Litigation
Prior to 2008, all farms were subject
to release reporting for air emissions
under both CERCLA and EPCRA but
were eligible for reduced continuous
release reporting. In December 2008,
EPA published a final rule that
6 The EPCRA continuous release reporting
regulation at 40 CFR 355.32 cross-references the
CERCLA definition of continuous releases at 40
CFR 302.8(b).
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exempted all farms from reporting
animal waste air emissions under
CERCLA and exempted small and
medium concentrated animal feeding
operations (CAFOs) 7 from reporting
such emissions under EPCRA (73 FR
76948, December 18, 2008). Large
CAFOs with emissions equal to or
exceeding an RQ were still required to
report under EPCRA with the
continuous release reporting option, as
applicable. EPA intended the 2008
rulemaking to reduce the reporting
burden on farms and emergency
response agencies.
In April 2017, the 2008 rule was
vacated by the United States Court of
Appeals for the District of Columbia
Circuit as arbitrary and capricious. See
Waterkeeper Alliance, et al. v. EPA, 853
F.3d 527 (D.C. Cir. 2017). In so holding,
the court acknowledged the potential
health risks of some animal waste air
emissions and found that reporting
could be useful to local and state
authorities who may need to investigate
or respond to these releases. The effect
of the court’s vacatur was to reinstate
reporting requirements for air emissions
from animal waste at all farms under
CERCLA and EPCRA. The court delayed
the effective date of its ruling until May
2, 2018, to grant EPA time to develop
guidance to assist farms with meeting
their reporting obligations.
2. 2018 FARM Act and Related 2018
CERCLA Rule
On March 23, 2018, President Trump
signed into law the Consolidated
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 amended
CERCLA section 103 to expressly
exempt the reporting of air emissions
from animal waste (including
decomposing animal waste) at a farm.
As a result, in August 2018, the Agency
published a final rule to amend the
CERCLA regulations at 40 CFR part 302
by adding the reporting exemption for
air emissions from animal waste at
farms and adding definitions of ‘‘animal
waste’’ and ‘‘farm’’ from the FARM Act
(83 FR 37444, August 1, 2018).
The FARM Act expressly exempted
all farms from reporting air emissions
7 EPA defined different sizes of farms using the
National Pollution Discharge Elimination System
(NPDES) size definitions for concentrated animal
feeding operations (CAFOs). A table of EPA’s
NPDES regulatory definitions of large, medium, and
small CAFOs can be viewed here: https://
www3.epa.gov/npdes/pubs/sector_table.pdf.
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from animal waste under CERCLA but
did not amend EPCRA in any way.
3. 2019 EPCRA Rule and Related
Litigation
EPA proposed a rule on November 14,
2018, to exempt all farms from reporting
air emissions from animal waste under
EPCRA (83 FR 56791, November 14,
2018). EPA received considerable
comments from the public both
supporting and opposing the proposed
rule. Supporters largely agreed with
EPA’s interpretation of the statutes and
expressed concerns over the burden that
would be placed on farms if animal
waste emission reporting was not
exempt under EPCRA. Opposing
commenters expressed concerns over
the environmental and health impacts of
animal waste air emissions and the
public’s right-to-know about these
emissions. They argued that EPA’s
interpretation of the statute in support
of the proposed rule was unlawful.
After consideration of all these
comments, EPA finalized the rule to
promulgate the EPCRA exemption on
June 13, 2019 (84 FR 27533) (the June
2019 EPCRA Rule).
On July 9, 2019, several
environmental groups, including the
Rural Empowerment Association for
Community Help (REACH), the Center
for Biological Diversity, the
Environmental Integrity Project, and the
Waterkeeper Alliance, amended an
existing complaint to challenge the final
rule in the U.S. District Court for the
District of Columbia. See REACH v.
EPA, No. 1:18–CV–02260 (Sept. 28,
2018) (the REACH case). A number of
agricultural trade associations joined the
action as intervenors, including the
National Cattlemen’s Beef Association,
the National Pork Producers Council,
and the American Farm Bureau
Federation.
4. Executive Order 13990, January 20,
2021
On January 20, 2021, shortly after the
change in administration, President
Biden issued Executive Order (E.O.)
13990, which states that it is the policy
of the new administration: ‘‘to listen to
the science; to improve public health
and protect our environment; to ensure
access to clean air and water; to limit
exposure to dangerous chemicals and
pesticides; to hold polluters
accountable, including those who
disproportionately harm communities of
color and low-income communities; to
reduce greenhouse gas emissions; to
bolster resilience to the impacts of
climate change; to restore and expand
our national treasures and monuments;
and to prioritize both environmental
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justice and the creation of the wellpaying union jobs necessary to deliver
on these goals.’’ (86 FR 7037, January
25, 2021).
E.O. 13990 further directed federal
agencies to ‘‘immediately review and, as
appropriate and consistent with
applicable law, take action to address
the promulgation of Federal regulations
and other actions during the 4 years
prior to the E.O. that conflict with these
important national objectives, and to
immediately commence work to
confront the climate crisis.’’ See Id. In
keeping with E.O. 13990, EPA moved
the court in the REACH case to remand
the June 2019 EPCRA Rule back to the
EPA on November 23, 2021. The district
court granted the remand on February
14, 2022 ‘‘without vacatur,’’ meaning
the EPCRA exemption for farms remains
in place while EPA reconsiders the rule.
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IV. What information is EPA seeking?
EPA is seeking comments and data
that will better inform the Agency on
whether to pursue a proposed rule, as
well as assist the Agency on how best
to implement the reinstating of EPCRA
reporting from farms, if such a rule is
finalized. The Agency is specifically
soliciting information on the following
five topics: (1) health impacts; (2)
implementation challenges; (3) costs
and benefits; (4) small farm definition
and potential reporting exemption, and
(5) a national report on animal waste air
emissions.
A. Health Impacts From Animal Waste
Air Emissions
EPA reviewed literature about health
impacts to communities in the vicinity
of farms with animal waste. A summary
of the health impact studies can be
found in the Technical Background
Document (TBD) in the docket for this
action. The literature review of 21
studies reporting on health effects
associated with air releases from Animal
Feeding Operations (AFOs) add to a
body of evidence that exposure to AFOs
is associated with respiratory health
effects, mortality, odor annoyance,
gastrointestinal illness, and other health
effects. They also reveal that
populations located in close proximity
to animal operations are at a greater risk
for adverse health effects compared to
populations located farther away or
residing in areas without AFOs. The
literature search identified several
studies showing a correlation between
proximity and exposure to animal waste
and respiratory health effects, including
increased likelihood of asthma in both
adults and children and reduced lung
function. Some of the studies also
identified exposure to animal waste as
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being correlated with mortality rates,
gastrointestinal illness, and other
human health effects. The size and type
of operation, number of animals, and
species may affect the intensity of
animal waste exposure. The studies also
concluded that populations located in
closer proximity to animal farm
operations are at an increased risk for
adverse health effects when compared
to populations located farther away or
residing in areas without animal farm
operations. The studies also provided
specific cases where communities with
environmental justice concerns,
including those comprising people of
color, low-income individuals, and
children in specific geographic locations
of the country are disproportionately
located near animal feeding operations.
The location of these populations has
the potential to result in significant
health impacts on the members of these
communities.
Request for Information
EPA requests the following
information relating to health impacts:
#1—Health Impacts: The Agency is
soliciting comment on the literature
search provided in the TBD and
requesting any additional relevant
literature or other information on health
impacts from animal waste air
emissions, including any indirect health
impacts. The Agency is also requesting
any information on health impacts to
communities with environmental justice
concerns.
B. Implementation Challenges
If the Agency reinstates EPCRA
reporting, EPA anticipates a certain
level of uncertainty with determining or
calculating the amount of animal waste
air emissions of ammonia and hydrogen
sulfide to trigger reporting. In the
subsequent sections, the Agency is
soliciting information on estimating
amounts of air emissions, as well as
other implementation challenges such
as whether the continuous release
reporting requirements are applicable to
farm operations and how the influx of
release reporting data could be
managed.
1. National Air Emissions Monitoring
Study (NAEMS)
EPA’s Office of Air and Radiation
(OAR) is developing methodologies,
based on data collected under the
National Air Emissions Monitoring
Study (NAEMS), to estimate air
emissions of ammonia, hydrogen
sulfide, particulate matter (PM), and
volatile organic compounds (VOCs)
from animal waste from poultry (egglayers and chicken broilers), swine, and
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dairy livestock. The NAEMS originated
in 2005 from the EPA and agriculture
industry’s understanding of the
difficulty in estimating air emissions
from animal feeding operations. To
address the issue, the Agency entered
into the Air Consent Agreement with
the animal production industry, which
included approximately 2,600 entities
covering about 14,000 farms. As part of
the agreement, EPA agreed not to pursue
enforcement actions for certain past
violations of the Clean Air Act,
CERCLA, and EPCRA during
development of the methodologies. The
methodologies, based on the NAEMS
data, are being developed for poultry
(egg-layers and chicken broilers), swine,
and dairy operations utilizing air
monitoring data from animal operations
and statistical analyses. The initial
methodologies were released to the
public starting in 2020. EPA anticipates
holding a formal public comment period
starting in late 2023 and finalizing the
methods by spring 2024. In the existing
draft form, the methods use a set of
variables easily accessible to estimate
emissions. These variables include type
and number of animals at the farm;
beginning and ending animal weight;
waste management method(s) and if
applicable; the housing type and
number of days without animals in the
barn or house; and ambient relative
humidity, ambient temperature, and
wind speed. Additional information can
be found at https://www.epa.gov/afosair/national-air-emissions-monitoringstudy or in docket EPA–HQ–OAR–
2004–0237.
The Agency acknowledges there are
livestock types, such as turkey and beef,
and operational configurations that are
not covered under the NAEMS
methodologies. The subsequent section,
IV.B.2, solicits comment and
information on these gaps and how to
address them, if EPCRA reporting is
reinstated.
Request for Information
EPA requests the following
information relating to EPA’s emissions
estimating methodologies developed
using data collected as part of the
NAEMS:
#2—Emissions Estimating
Methodologies: EPA requests comments
on the applicability of the NAEMS
methodologies for estimating air
emissions from animal waste for farm
types not included as part of NAEMS for
a potential future reporting under
EPCRA. For instance, data were not
collected from cage-free layer facilities
and recent trends in the industry have
been toward more eggs being produced
from cage-free facilities. As part of the
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NAEMS program, emissions data were
collected from high-rise and belt-battery
layer facilities which may have different
emissions than a cage-free facility.
#3—2005 Compliance Agreement
Reporting: If EPA requires reporting
under EPCRA, would there be confusion
around the timing of reporting for
participants of the 2005 compliance
agreement? If the Agency were to pursue
and finalize a rulemaking to reinstate
EPCRA reporting for animal waste air
emissions prior to the NAEMS methods
being finalized, then NAEMS
Agreement participants would not have
to report until the timeframes triggered
by publication of the final NAEMS
methodologies. This point may be moot
since the NAEMS methods are
scheduled to be finalized well in
advance of the time needed for a
possible rulemaking to reinstate EPCRA
reporting. The Agency is soliciting
comment on any outreach that EPA
should conduct to avoid potential
confusion.
2. Emissions Calculator and Guidance
on Estimating Amounts of Air Releases
If EPA moves forward with reinstating
the EPCRA reporting requirement for
farms, the Agency may need to develop
tools and guidance to minimize the
reporting burden.
EPA could develop a calculator for
farms to estimate their animal waste air
emissions. The web-based emissions
calculator would use the estimation
methods developed with the NAEMS
data, enabling farms to input a limited
number of variables to estimate the
amount of ammonia and hydrogen
sulfide air releases from animal waste.
The input variables would be
information that farmers are assumed to
already know, such as location of the
farm, species of animals at the farm,
species population size, waste
management method(s) and if
applicable, the housing type, number of
days without animals in the barn or
house and beginning and ending animal
weight. The emissions calculator could
use the farm location (e.g., county or ZIP
code) to obtain meteorological data (e.g.,
ambient relative humidity, ambient
temperature, wind speed). The
emissions calculator would perform the
calculations using the formulas derived
from the NAEMS data, which provide
an estimate of release amount per day in
pounds. This screening step would
identify whether a farm meets or
exceeds the reportable quantity and
therefore, be subject to reporting under
EPCRA. If the emissions calculator
shows that the reportable quantity is
exceeded, the farm may be able to meet
the reporting requirements with
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continuous release reporting. The
applicable information in the emissions
calculator could then auto-populate an
EPA webform for the continuous release
report form. Finally, instructions with
the webform could instruct the farmer
on how to submit the continuous release
report to their appropriate state, tribal
and local agencies responsible for
collecting EPCRA release reports. The
Agency recognizes that the NAEMS data
does not cover all livestock species or
operational configurations. For example,
common species such as turkey and beef
are not included in the Air Consent
Agreement, nor are less common
livestock species, such as goat, llama,
and aquaculture. If the Agency pursues
a rule to require EPCRA reporting, the
Agency does not want farmers to
struggle with estimating air emissions,
thus the Agency is soliciting input and
recommendations for tools and/or
guidance the Agency could develop to
assist farms in estimating air emissions
for livestock and operational
configurations not covered under the
NAEMS methods.
Finally, if farms are required to report
under EPCRA, ideally, EPA would
provide a mechanism or threshold
upfront to farms as to whether an
estimate of their emissions is even
necessary (i.e., does a farm have enough
livestock to even come close to the
reportable quantity?). EPA has
considered developing guidance on a
minimum number of animals, where
under typical farm operations, any
number of livestock below the cutoff
could not exceed the 100 pounds of air
emissions for either hydrogen sulfide or
ammonia. If possible, these types of
cutoffs could be provided on EPA’s
website and on the front end of the
emissions calculator, so that farms with
numbers of animals below the cutoff,
can quickly determine they would not
need to report. EPA understands this
may not provide the level of regulatory
certainty to assure farmers that they are
complying with the regulations. The
Agency seeks input on whether this
type of cutoff would be helpful and
what unforeseen issues with providing
such cutoffs through guidance and
outreach materials could arise. Of note,
the Agency contemplated including
such a cutoff in regulatory text for a
potential future rule. Under the prior
2008 rulemaking (73 FR 76948), only
large CAFOs were required to report
under EPCRA, where the definition of a
large CAFO (by number of livestock)
provided regulatory certainty.
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Request for Information
EPA requests the following
information relating to a potential
emissions calculator:
#4—Emissions Calculator—General:
EPA requests comments on the utility
and function of an emissions calculator.
Should EPA create a webform tool that
can calculate an estimate of air
emissions from animal wastes on farms?
The Agency has a draft design of an
emissions calculator included in an
appendix of the TBD to provide readers
with the look and feel of the tool.
Separately, is there a need for EPA to
create a paper form or phone hotline to
assist users that do not have access to
the internet? Are there other, more
efficient, ways to provide air emission
estimates to farms other than through a
webform calculator?
#5—Emissions Calculator—
Continuous Release Reporting: If the
emissions calculator provides an
estimate that exceeds the reportable
quantity, should farmers (users) be
routed from the emissions calculator to
the continuous release reporting form
and the instructions for submission to
the specific state, tribal and local
agencies? The Agency is soliciting
comment on this approach in general,
and on whether this is the most efficient
process EPA can establish for reporting
animal waste air emissions under
EPCRA (i.e., Would farms find this
helpful? Are there any other steps in the
process which could be streamlined by
EPA and/or state, tribal and local
agencies? Are there alternatives that
may be more efficient?).
#6—Accuracy of Reported Release
Quantity: Should the calculator include
a disclaimer that the emissions are
estimates of uncontrolled emissions,
and may not reflect actual emissions
due to differences in each farm
operation and applications of controls?
The Agency solicits comment on adding
a disclaimer and any other guidance
that may be needed.
#7—Turkey and Beef Contribution
Factors: Turkey and beef are two of the
most prevalent livestock species not
included in the Air Consent Agreement.
If EPCRA reporting is reinstated, the
Agency would consider publishing
contribution factors for turkey and beef
livestock. The contribution factor would
be a quantity of ammonia and hydrogen
sulfide emitted per animal. The farmer
would only need to conduct a
‘‘bookkeeping exercise,’’ of multiplying
the number of livestock by the
contribution factor, which would
provide the air emission estimate.
Potential contribution factors for turkey
and beef are in an appendix in the TBD.
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The Agency is soliciting comment and
information on whether developing
contribution factors would be useful
and appropriate for turkey and beef. The
Agency is also soliciting any
information that could be used to
develop contribution factors for turkey
and beef. See the TBD for the Agency’s
preliminary review into turkey and beef
emissions studies. The contribution
factors and literature search in the TBD
are only drafts to give the reader an
estimate of what a turkey and beef
contribution factor may be, as well as
show the relevant literature EPA would
review to develop contribution factors.
#8—Estimating Emissions from Less
Common Species: The Agency is
requesting information that could be
used in development of contribution
factors for less common livestock which
are not included in the NAEMS.
Additionally, if the Agency reinstates
EPCRA reporting, would it be
appropriate for the Agency to devote
time and resources to develop
contribution factors for all conceivable
farming operations? The Agency has
included some preliminary draft cutoffs
in the TBD for estimating the initial
burden to all farms when determining if
they will exceed the RQs.
#9—Estimating Emissions from
Atypical Farming Operations: There
may be farms unable to use the NAEMS
methods because they do not apply to
their specific operation configuration.
For example, cage-free egg laying houses
were not prevalent in the industry when
the NAEMS was conducted, and no data
were collected to support method
development. In those cases, farms
would need to use other information to
estimate the air emissions, if EPCRA
reporting is reinstated. For examples of
operations that are included in the
emissions calculator, see the
screenshots of a mock-up of the
calculator in the appendices of the TBD.
EPA requests comment on operational
configuration scenarios not covered by
the NAEMS methodologies, and
subsequently not covered by the
emissions calculator, that should be
included in guidance to assist the
regulated community. EPA requests
comment on operational configurations
not covered by the methodologies
developed from NAEMS data and
requests any information that could be
used to develop tools or guidance on
how to calculate emissions from
atypical farming operations.
#10—Cutoffs for Estimating: Should
EPA develop guidance with de minimis
thresholds which would make clear that
a farm with livestock inventory below
the threshold could not conceivably
produce over 100 pounds of ammonia or
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hydrogen sulfide in a 24-hour period,
and thus would not have to estimate air
emissions or have to report under
EPCRA? The Agency is requesting any
information that could be used to
develop thresholds. Are there farming
operations that could be exceptions to
such a threshold where very few
animals are on the farm, but the farming
operation would have enough manure
on site to emit over 100 pounds of
ammonia or hydrogen sulfide in a 24hour period?
#11—Other Guidance: EPA solicits
comment on additional implementation
information EPA should consider in
development of guidance, and other
implementation tools EPA could
provide to farms to reduce reporting
burden and costs.
3. Grazing Operations
EPA is also seeking comment on
having emissions from animals living
and being raised in grazing or pasture
situations covered by a potential future
rule. A common example is beef cattle
that are raised grazing or pastured over
large areas of land for a period of time
in their growth cycle. The animal waste
generated while grazing or pastured is
generally widely dispersed across the
landscape and is not in a concentrated
area. The beef cattle can then be
transferred from the grazing or pastured
areas to feedlots or other concentrated
feeding operations to complete their life
cycle. Other species similarly are raised
grazing or pastured for a period of their
life cycle.
If reporting is reinstated under a
potential future rule, only farming
operations that are defined as a
‘‘facility’’ would need to report. Under
EPCRA section 329 (Definitions), the
term ‘‘facility’’ means ‘‘all buildings,
equipment, structures, and other
stationary items which are located on a
single site or on contiguous or adjacent
sites . . .’’ The term ‘‘facility’’ is further
defined in the EPCRA regulations at 40
CFR 355.61 to include ‘‘manmade
structures, as well as all natural
structures in which chemicals are
purposefully placed or removed through
human means such that it functions as
a containment structure for human use.’’
In general, the Agency does not
currently believe grazing operations fall
under the definition of ‘‘facility,’’ unless
the manure is collected and managed.
Request for Information
EPA requests the following
information relating to grazing
operations:
#12—Grazing Operations: EPA seeks
comment on whether the Agency’s
interpretation of ‘‘facility’’ relating to
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grazing operations is correct and
appropriate. The Agency also seeks
information on whether clarifications of
the applicability of the regulations to
other farming operations is needed.
4. Use of Continuous Release Reporting
by Farms
The animal waste that farms handle or
manage as part of their normal
operations of raising animals may have
regular air emissions which could fall
within the scope of continuous release
reporting (see section III.C. for an
overview of continuous release
reporting). As mentioned previously,
continuous release reporting under
EPCRA encompasses the following three
requirements, found at 40 CFR 355.32:
(1) Initial telephone notification made to
the LEPC and SERC; (2) Initial 30-day
written notification to the LEPC and
SERC; and (3) notification to the LEPC
and SERC of any increase in the
quantity of the hazardous substance
being released during any 24-hour
period, which represents a statistically
significant increase (SSI). The 30-day
written notification is submitted using a
range for the quantity released, and an
SSI is anything that exceeds the upper
bound of the range identified in the
initial 30-day notification. Of note, there
are no requirements for updating a
continuous release report if the release
decreases below the lower bound
provided in the report, and there are no
federal requirements for reporting when
a continuous release has ceased.8
Furthermore, the initial notification
does not require monitoring data to
support the upper and lower bounds of
the quantity released; instead, the
regulations allow for ‘‘using release
data, engineering estimates, knowledge
of operating procedures, or best
professional judgment’’ (see 40 CFR
355.32(a) via 40 CFR 302.8(d)(1)).
Finally, a continuous release is defined
as ‘‘a release that occurs without
interruption or abatement or that is
routine, anticipated, and intermittent
and incidental to normal operations or
treatment processes,’’ (see 40 CFR
302.8(b); emphasis added).
Request for Information
EPA requests the following
information relating to continuous
release reporting:
#13—Application of Continuous
Release Reporting: The Agency is
soliciting comment on the
appropriateness of defining all air
releases from animal waste on farms as
8 Note: State, tribal, and local EPCRA
implementing agencies may have additional
reporting requirements.
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continuous releases, because they are
routine, anticipated, and intermittent
and incidental to normal operations.
#14—Application of Upper and Lower
Bounds: The Agency is soliciting
comment on allowing farms to apply
upper and lower bounds on their
continuous release reports to estimate
the highest or lowest quantity released
at any point during the year, regardless
of seasonal fluctuations in farming
operations.
#15—Exceptions to Continuous
Release Reporting: Given the flexibility
of the EPCRA continuous release
reporting requirements, the Agency is
soliciting comment on whether there are
scenarios for which releases from
animal waste at farms could not be
covered under continuous release
reporting. If that is the case, the Agency
requests any information on such
farming operations, so the Agency can
account for the burden these operations
would incur from episodic release
reporting, instead of continuous release
reporting.
#16—Benefits and Costs of
Continuous Release Reporting Data: The
Agency is soliciting comment and
supporting data on the usefulness of
continuous release reporting data to the
surrounding communities and SERCs
and LEPCs (i.e., If the report is
submitted with a large range for the
quantity released, would that help the
public understand what’s in their
community?).
#17—Continuous Release Reporting—
Other: The Agency is soliciting
information and comment on any other
issue relating to the application of
continuous release reporting by farms
subject to a potential future rule.
5. Citizen Suits
Reinstating animal waste air
emissions reporting requirements would
create potential liability for farms that
meet or exceed the RQ, but fail to report,
under the citizen suit provisions of
EPCRA. Under EPCRA section
326(a)(1)(A)(i), a citizen may file suit
against an owner or operator of a
facility, including a farm, for failing to
submit the follow-up emergency notice
of release required by EPCRA section
304(c).9 Before filing a citizen suit, the
citizen must provide 60 days’ notice of
the alleged violation to the facility, the
state, and EPA, as required by EPCRA
section 326(d)(1). If the alleged violator
files the missing report in that time (i.e.,
the violation is ‘‘wholly past’’), EPA
9 When using continuous release reporting, the
30-day initial written notification under 40 CFR
355.32(a), further specified under 40 CFR 302.8(e),
is considered the follow-up emergency notice under
EPCRA section 304(c).
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believes an actual lawsuit would be
unlikely. Pursuant to the Supreme Court
decision in Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83 (1998),
citizens may not be able to demonstrate
that they have standing to bring a suit
for wholly past violations. In practice, if
a facility files a release report within 60
days of receiving notice of a citizen suit,
the suit may be dismissed with no
award of attorney’s fees or investigative
costs. A suit also may not be brought if
EPA has ‘‘commenced and is diligently
pursuing’’ an action to enforce a
requirement or impose a civil penalty
under EPCRA.
The Agency does not have a list of
past citizen suits, but believes they are
infrequent and not focused on small
farms. EPA requests comment on
potential citizen suit issues and
concerns that are related to nonreporting farms. If there are other citizen
suit considerations, EPA requests
comment on these issues and concerns,
including benefits of this potential
remedy. These comments may assist in
the development of guidance and
outreach information to be shared with
the regulated community as part of
future compliance assistance if
reporting is reinstated.
Comments received on the 2018
proposed rule included a concern of
liabilities that reporting requirements
could create for farmers because the
information is ‘‘inherently imprecise
and therefore subject to dispute.’’ 10 The
Agency notes that under EPCRA section
326(a)(1)(A)(i), a citizen suit can be
brought against an owner or operator for
failing to submit the follow-up
emergency notice of release required by
EPCRA section 304(c). That notice
includes an ‘‘estimate of the quantity of
any such substance that was released
. . .’’ (see EPCRA section 304(b)(2)(C)).
Request for Information
EPA requests the following
information relating to potential impacts
on farms from citizen suits:
#18—Citizen Suits—Wholly Past
Violations: Given that EPCRA requires
60 days’ notice before filing a citizen
suit, and the decision in Steel Co. v.
Citizens for a Better Environment, 523
U.S. 83 (1998), could citizen suits create
more than a minimal burden on farms?
Given that only an estimate needs to be
provided to fulfill the requirements, the
Agency is also soliciting comment and
information on the potential for
additional citizen suits based on the
accuracy of the reporting estimate.
10 See comment with docket ID EPA–HQ–OLEM–
2018–0318–0224.
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#19—Citizen Suit Benefits and Costs:
What are the potential costs and
liabilities of EPCRA citizen suits for
non-reporting farms if reporting is
reinstated? The Agency is also soliciting
any information on realized benefits of
a citizen suit being filed against a farm.
Finally, the Agency is soliciting
information on the frequency and
number of previous citizen suits for
failing to submit the follow-up
emergency notice of release required by
EPCRA section 304(c), as well as the
frequency and number of 60-day notices
provided to farms in advance of the
citizen suit. We realize that EPCRA
reporting for animal waste air emissions
at farms is not currently required,
however, reporting was required by
large CAFOs prior to 2019, which is the
time period for which EPA is seeking
information.
#20—Citizen Suit—Guidance: If the
Agency develops guidance on citizen
suits, what information should the
guidance include?
#21—Citizen Suit—Other: The
Agency is soliciting information and
comment on any other issues related to
citizen suits in the context of a potential
future rulemaking to reinstate EPCRA
reporting for farms.
6. Privacy Concerns
If reporting is reinstated in a future
rulemaking for farms, the public may
seek access to the report under the rightto-know provision in EPCRA section
324(a). EPA understands there may be
privacy concerns by the farmers when
their personal residence is the same as
the address for the farm, in which case
the submitted reports may contain
personal information that was
previously unavailable from any other
source to the public. The Agency
expects that most small farms will not
meet the applicable release reporting
thresholds and will therefore fall
outside the scope of any EPCRA
reporting requirement entirely;
however, the Agency still appreciates
the concern for the small farms that
would need to report.
Request for Information
#22—Privacy Concerns: EPA seeks
comment, generally, on the privacy
concerns of farmers who would be
required to report animal waste air
emissions. The Agency is also seeking
creative solutions that could provide
communities with information on air
emissions from a farm without
disclosing the location (i.e., personal
address) of a ‘‘small’’ farm.
#23—Privacy Concerns—Other: The
Agency is soliciting information and
comment on any other issues related to
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privacy concerns in the context of a
potential future rulemaking to reinstate
EPCRA reporting for farms.
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7. EPCRA National Database
Under EPCRA’s statutory authority
(42 U.S.C.11004), EPCRA emergency
release notifications (Section 304; 40
CFR 355.30) are submitted to the SERCs
or TERCs and LEPCs or TEPCs, but not
to the EPA or another federal agency.
EPA recognizes that reinstatement of
EPCRA animal waste air emissions
reporting will increase the number of
release reports submitted to state, tribal,
and local agencies (the implementing
agencies). Under the existing
authorities, the implementing agencies
will have the responsibility of receiving
and managing the reports and making
the information publicly available as
part of the EPCRA right-to-know
provisions.
The EPA requests comment and
information on creating an EPCRA
database for animal waste air emissions
information at the national level, that
would be housed at EPA. The Agency
believes a centralized EPCRA
submission portal and management
system can improve the reporting
program by centralizing and
standardizing reporting and reducing
burden on both the implementing
agencies and the regulated community.
Recognizing that existing statutory
reporting requirements under EPCRA
may need to be amended to allow it,
EPA also seeks comment from the
implementing agencies and the
regulated community on the benefits
and challenges of creating an EPCRA
national database. EPA requests
comment not only for animal air
emissions, but for reporting under all
sections of EPCRA, except section 313,
which is the Toxics Release Inventory
(TRI) program. Following is a list of
applicable EPCRA reporting
requirements that could be built into a
national system:
—Facility emergency planning
notifications (40 CFR part 355,
subpart B; EPCRA section 302).
—Emergency release notifications (40
CFR part 355, subpart C; EPCRA
section 304)
—Hazardous chemical inventory reports
(40 CFR part 370; EPCRA sections 311
and 312).
Currently, reporting methods are
determined by the state or tribe. These
SERCs and TERCs are using a variety of
submission and data management
platforms to meet their statutory
obligations. Over half of the states are
using three existing submission
platforms for annual Section 312 Tier II
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submissions: Tier2 Submit, E-Plan, and
TIER II MANAGER. The other states use
other commercial software or have statespecific programs. Through a
centralized database, EPA could collect
EPCRA reports and make those reports
immediately available to state, tribal,
and local agencies, thus improving the
efficiency, efficacy, and transparency of
EPCRA reporting compliance and
removing the burden to state, tribal, and
local agencies receiving and managing
the submittals. The database can also
reduce the burden on these
implementing agencies by providing a
public right-to-know information center.
The clearinghouse would be a ‘‘one-stop
shop’’ for industry, the EPCRA
implementing agencies, and the public.
A national database would provide
industry the opportunity to report to
multiple states and local entities in one
platform. The implementing agencies
would have access to all of the
submitted information for their covered
area, reducing their administrative
burden and allowing them to focus on
implementation, community safety, and
compliance. The database would handle
all reporting requirements, as well as
requests from the public for
information, allowing entities to use
their limited resources to improve
compliance efficacy.
The EPCRA emergency planning
provisions, codified under 40 CFR part
355, subpart B, include several required
communications with the SERC or
TERC and/or LEPC or TEPC, such as the
initial notification that a facility is
subject to EPCRA emergency planning
requirements; notification of the facility
emergency coordinator; notification of
any relevant changes to emergency
planning; and providing information to
the LEPC or TEPC upon request. A
national database could manage, track,
and store all these required
communications. Furthermore, with the
planning data, the EPA could facilitate
coordination between LEPCs or TEPCs
with similar types of facilities to share
best practices and lessons learned on
how to plan for specific risks.
The emergency release notification
requirements, under 40 CFR part 355,
subpart C, include immediate
notification via phone and follow-up
written reports to the SERC or TERC and
LEPC or TEPC, as well as specific
requirements for continuous release
reporting requirements. A national
EPCRA database could handle these
notifications, although initial release
notification may not be ideal, because
initial notifications are time-sensitive
and are typically phone calls to the
LEPC or TEPC and SERC or TERC.
However, the 30-day follow-up written
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80231
reports and continuous release reports
could be well-suited for a national
database. LEPCs, TEPCs, TERCs and
SERCs would have the benefit of having
the data standardized and stored.
Additionally, EPA could coordinate
discussions on clean-up and response
activities among LEPCs and TEPCs with
similar releases.
Request for Information
EPA requests the following
information relating to a National
EPCRA Database:
#24—National EPCRA Database—
General: The Agency is soliciting
information and comment in general
about a national EPCRA database, as
well as any input on how such a system
should be designed, developed, and
implemented. EPA seeks quantitative
information characterizing how a
centralized reporting clearinghouse
could reduce burden to stakeholders.
The Agency also solicits information on
conducting a pilot of a national database
with a small number of states and local
implementing agencies.
#25—National Database—Managing
Right-to-Know Data: EPA requests
comment and information from LEPCs,
TEPCs, SERCs, and TERCs on whether
a national EPCRA database would be
beneficial to receive and manage reports
and, pursuant to the right-to-know
requirements, make those reports
available to the public.
#26—National Database—Managing
Reports from Facilities: EPA seeks input
on both the potential benefits and any
disadvantages for LEPCs, TEPCs, SERCs,
and TERCs of creating a national
database for receiving and managing
EPCRA sections 302, 304, 311, and 312
reports.
#27—National Database—Animal
Waste Air Emissions Reporting: EPA
seeks input on the potential efficiencies
or inefficiencies to the regulated
community of submitting EPCRA
animal waste air emissions reports to
one centralized portal. EPA also seeks
input on both the potential benefits and
disadvantages to the communities near
animal farming operations and the
general public of a national database to
receive and manage reports and,
pursuant to right-to-know requirements,
make reports available to the public.
#28—National Database—Facility
Benefits and Disadvantages: EPA seeks
input on potential benefits and
disadvantages for the regulated
community of a national database for
complying with EPCRA sections 302,
304, 311, and 312 reporting
requirements.
#29—National Database—Managing
FOIA Requests: EPA seeks input from
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LEPCs, TEPCs, SERCs, and TERCs about
EPA managing Freedom of Information
Act (FOIA) requests and releasing
EPCRA data from a national system. The
Freedom of Information Act generally
provides the public with access to
federal agency records, however FOIA
does not apply to state and local
agencies. Each state has their own laws
and procedures for releasing records to
the public. The EPA is soliciting
comment and information on what
issues may need to be addressed if EPA
were to manage FOIA requests on what
would be considered state and local
data under EPCRA.
#30—National Database—Other: The
Agency is soliciting information and
comment on any other issues related to
a national EPCRA database.
C. Costs and Benefits
1. Estimated Regulated Universe
EPA estimates the total number of
farms with livestock to be
approximately 1.25 million based on
data from the United States Department
of Agriculture’s (USDA) 2017 Census of
Agriculture. However, only a fraction of
these farms is expected to exceed the
reportable quantity for either ammonia
and/or hydrogen sulfide, and thus be
regulated under a potential future rule
that would reinstate reporting. The
Agency used data from NAEMS and
literature reviews to estimate
contribution factors (i.e., estimate of
quantity of air emissions per animal per
day), which were applied to the
livestock numbers from the USDA
Census, to generate an estimate of
37,891 farms that would be expected to
exceed the reportable quantity. All of
the estimates, calculations and
assumptions are in the TBD in the
docket.
The reporting burden is expected to
be relatively minimal because the
Agency anticipates that continuous
release reporting would be used in a
majority of instances (see Section D.2
for burden estimates). Even though the
reporting burden is expected to be low
and only encompass approximately
38,000 farms, other farms may not know
whether their operations will exceed the
reportable quantity. The following
section (Section D.2) solicits comment
on estimating the burden to all 1.25
million farms with livestock.
Request for Information
EPA requests the following
information relating to estimating the
regulated universe:
#31—Regulated Universe—Number of
Farms Reporting: The Agency is
soliciting information and comments on
the estimate of farms expected to exceed
the reportable quantity. The Agency is
specifically soliciting information and
comment on the methods for estimating
the number of regulated farms, the data
sources used, and the estimated
contribution factors, which are all
detailed in the TBD. Regarding the
contribution factors, the Agency realizes
that the contribution factors EPA used,
for estimating the regulated universe,
may not take into account all the
variables that impact any given farm’s
animal waste air emissions, and is
soliciting information and comment on
the accuracy of the contribution factors
used to estimate the regulated universe;
any additional information that may
provide a more accurate estimate of the
regulated universe; and the utility of
refining the contribution factors or the
method used.
2. Burden Estimates
In analyzing whether to pursue a
rulemaking to rescind the reporting
exemption, EPA considered the costs
associated with reinstating reporting
requirements. EPA estimated the total
costs by combining unit costs of
compliance per farm with the estimate
of the affected farm universe. The
Agency used animal inventory data
from USDA’s 2017 Census of
Agriculture in the affected NAICS codes
to identify the regulated universe of
37,891 farms. Farm operations with
continuous air releases of ammonia or
hydrogen sulfide from animal waste that
meet or exceed the RQ would qualify for
reduced reporting requirements,
including:
• Providing initial continuous release
telephone notification to the SERC (or
TERC) and LEPC (or TEPC);
• Submitting initial written report to
the appropriate SERC (or TERC) and
LEPC (or TEPC);
• Providing notification of a
statistically significant increase (SSI) in
a release to the SERC (or TERC) and
LEPC (or TEPC); and,
• Providing notification of a new
release resulting from a change in
source or composition.
EPA estimated the annualized cost of
a potential future rule over a 10-year
analysis period. The total annualized
cost of reinstating EPCRA reporting
would be approximately $2.9 or $2.8
million using three and seven percent
discount rates, respectively, as detailed
in the TBD.
Table 2 summarizes the total
undiscounted cost of a future rule, by
year. For reporting farms, first-year costs
are $16.8 million, and total first-year
costs for SERCs (or TERCs) and LEPCs
(or TEPCs) is $6.5 million. Costs in
years 2 through 10 of the analysis are
significantly less, at approximately $0.1
million per year for both sets of affected
entities.
TABLE 2—TOTAL COST BY YEAR (UNDISCOUNTED) (2022$)
Animal operations
State, local, tribal gov’t
Compliance requirement
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First year
Years 2–10
First year
Years 2–10
Rule Familiarization and Applicability Determination ......................................
CRRR Reporting:
Labor Costs ..............................................................................................
Initial Notification ...............................................................................
Initial Written Report ..........................................................................
Reporting an SSI ...............................................................................
O&M Costs ...............................................................................................
Initial Notification ...............................................................................
Initial Written Report ..........................................................................
Reporting an SSI or New Release ....................................................
$3,710,295
$0
$0
$0
11,782,802
1,073,190
10,709,612
0
1,307,223
0
1,307,223
0
164,451
0
0
164,451
0
0
0
0
6,481,555
2,160,518
4,321,037
0
0
0
0
0
108,026
0
0
108,026
0
0
0
0
Total Cost ...................................................................................
16,800,321
164,451
6,481,555
108,026
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The Agency has also prepared a
screening analysis to assess small entity
impacts, documented in the TBD. The
Agency used sales data from the USDA’s
2017 Census of Agriculture in the
affected NAICS codes, along with Small
Business Administration (SBA)specified small business thresholds, to
identify the potential set of affected
small operations. EPA combined these
data with the affected universe data to
estimate the subset of reporting farms
that meet SBA size standards for small
entities. EPA estimates that 31,921 out
of the 37,891 farms in the regulated
universe (84 percent) are small
operations under SBA size standards.
EPA performed a cost-to-sales test for
these entities and found that none of the
affected operations would experience
costs greater than one percent of annual
sales. Based on the results of the costto-sales test, EPA concludes that a
future rulemaking would not have a
significant economic impact on a
substantial number of small entities.
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Request for Information
EPA requests the following
information relating to the costs of a
potential future rule:
#32—Burden—Reporting Farms: The
Agency is soliciting information and
comments on the cost estimates for
farms and state and local agencies. See
the TBD for a detailed analysis. The
Agency made assumptions for hours for
specific tasks; labor rates; how many
SSIs would be submitted; how many
new farms would report in the out
years; and other variables. EPA is
requesting information and comment on
these assumptions and variables that
could result in more accurate burden
estimates.
#33—Burden—Non-Reporting Farms:
The Agency is soliciting information
and comments on the cost estimates for
all farms to understand and potentially
estimate their air emissions. The Agency
estimates that all 1.25 million farms
with livestock (both reporting and nonreporting farms) would incur between 1
and 2.5 hours of burden per farm for
rule familiarization, which totals to
$97.6 million burden for all farms. See
section 3.2 in the TBD for a detailed
analysis.
#34—Burden—Small Farms: The
Agency is soliciting information and
comments on the analysis of impacts to
small farms. See the TBD for a detailed
analysis.
#35—Burden—Qualitative Costs: The
Agency is soliciting information and
comments on any qualitative costs of a
reinstating reporting. In the TBD, the
Agency attempted to quantify as many
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costs of a potential future rule as it was
able to.
3. Environmental Justice and
Community Right-To-Know
Any rulemaking resulting from this
ANPRM would impact only the
reporting requirements for animal waste
air emissions; a new rule would not
directly lessen air emissions from
animal waste on farms, nor directly
change disproportionate and adverse
effects experienced by communities
with environmental justice concerns.
However, one of the benefits of
requiring reporting is the availability
and accessibility of this information to
surrounding communities. This
reporting is critical to advancing the
Agency’s environmental justice goals by
increasing the understanding of
potential impacts of air emissions from
animal waste on communities with
environmental justice concerns. As a
result, fenceline communities may
benefit from the reporting of animal
waste air emissions at farms.
Although a potential future rule
would not directly address human
health or environmental conditions, the
EPA investigated potential
environmental justice concerns by
conducting geospatial analyses. To
conduct a thorough, national-level
environmental screening analysis,
publicly available data of source
locations of air emissions are required.
These data do not exist at the national
level. While the 2017 USDA Census is
a complete count of U.S. farms and
ranches and the individuals who
operate them, publicly available data are
aggregated to the county level to protect
the confidentiality of the information
provided by individual respondents.
The EPA conducted three levels of
analysis to identify communities that
may be affected by the reporting rule
based on the level of animal operations’
ammonia emissions for 5 animal sectors
(Beef, Broilers, Dairy, Layers, and
Swine) at the county-level, tribal-level,
and available state-level data.
As shown with the 2017 USDA
Census data in the environmental
justice analysis provided in TBD, that
while the upper quintile of counties
emitting ammonia from animal waste on
average does not exceed the national
average for minority populations or lowincome populations, four of the top ten
counties in ammonia emissions from
animal waste comprise populations
exceeding the national average for
minority populations and low-income
populations. The EPA believes that in
some localities, minority and lowincome populations may be
disproportionately impacted by air
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80233
emissions from animal wastes, which is
shown in the TBD at the county level
and census block level using the USDA
Census data and the state-specific farm
data.
Request for Information
EPA requests the following
information relating to the benefits of a
potential future rule:
#36—Benefits—Environmental
Justice: The Agency is soliciting
information and comments on the
environmental justice analysis. See the
TBD for details.
#37—Indirect Benefits: The Agency is
soliciting information and comments on
the indirect benefits of a potential future
rule to reinstate EPCRA reporting by
farms. A future rule would only be a
reporting rule to provide state, tribal
and local implementing agencies and
communities information on releases of
ammonia and hydrogen sulfide from
animal wastes on farms. However, after
air emission information is shared with
states, locals, and communities, there
are potential indirect benefits, such as
communities experiencing greater
capacity for meaningful involvement in
the development and implementation of
local pollution management policies or
the information leading to voluntary
initiatives by farms to review farming
and waste management practices and set
goals for reductions in emissions, and
institute ‘‘good neighbor’’ policies.
Potential changes in farm operations—
including reductions in the releases and
changes in the waste management
practices—could yield health and
environmental benefits. Indirect benefits
of a potential future rule have not been
quantified.
D. Small Farms
Based on the existing EPCRA RQs of
100 pounds per day for both ammonia
and hydrogen sulfide, EPA estimates the
regulated universe of the proposed rule
to be 37,891 farms. The regulated
universe is 3 percent of approximately
1.25 million farms nationwide in the
2017 USDA Agriculture census. Of the
37,891 reporting farms, 31,921 farms are
estimated to be small businesses as
defined by the Small Business
Administration (SBA), see the TBD in
the docket. Separately, using the
National Pollution Discharge
Elimination System (NPDES) farm size
CAFO categories, only approximately
3,000 of the 37,891 farms would be
considered small CAFOs and limited to
swine and dairy operations, also see the
TBD in the docket. Even though there
are relatively few ‘‘small farms’’ that
would be required to report releases
from animal waste, EPA recognizes that
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most farms would not know whether
they exceed the reporting threshold (i.e.,
be in the regulated universe). This
section is designed to gather
information relating to a reporting
exemption for small farms, which could
create regulatory certainty for farmers.
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1. Potential Reporting Exemption for
‘‘Small Farms’’
waste management methods; single
species-focused operations; or other
criteria? The Agency requests
information that could be used to
differentiate small farms from medium
and large operations that would support
exempting small farms from EPCRA
reporting.
2. Defining ‘‘Small Farms’’
Any potential action for small farms
If the Agency reinstates reporting for
requires defining ‘‘small farm.’’ The
farms, EPA seeks information on
term ‘‘farm’’ is already defined in 40
whether ‘‘small farms,’’ which would
CFR 355.61. If the Agency pursues
need to be defined in a potential future
rule, should be exempted from reporting reinstatement of EPCRA reporting, and
further pursues an exemption from that
animal waste air emissions.
reporting for small farms, the Agency
EPA considered relevant comments
would not be seeking to change the
received during the previous 2008 11
and 2019 12 rulemakings, as discussed in definition of ‘‘farm,’’ but rather to
expand on the existing definition to
the response to comment documents in
those dockets. For both the 2008 and the categorize ‘‘small farms.’’
In the 2008 rule exempting farms from
2019 rules, commenters acknowledged
that ‘‘small farms,’’ as described but not reporting animal waste air emissions (73
FR 76948), EPA defined different sizes
defined by the commenters, would not
of farms using the NPDES size
be expected to report because they are
definitions for CAFOs, due to familiarity
likely to fall below the RQ-based
with these size categorization terms
reporting threshold. In 2008,
within the agriculture industry.13 The
commenters stated that they did not
NPDES farm size categories of small,
think ‘‘small farms’’ would reach the
medium, and large are based on animal
established 100-pound RQs even
threshold numbers for each species. For
without a reporting exemption. One
example, mature dairy cattle have
commenter stated that EPA should
species-specific threshold ranges as
establish an exemption for farms under
follows: less than 200 defined as a small
an income level threshold which was
CAFO, 200 to 699 defined as a medium
not specified but would differentiate
CAFO, and 700 or above defined as a
between ‘‘true’’ family farms and larger
large CAFO.
industrial-type operations. The 2019
EPA seeks input on whether using the
rule received a comment from an
NPDES CAFO farm size categories for
environmental group that smaller
defining small farms is the best choice,
animal feeding operations are unlikely
and if not, EPA is seeking input on an
to be subject to EPCRA reporting.
alternative definition for ‘‘small farm.’’
Request for Information
EPA is aware of and has considered
other ways to define ‘‘small farms.’’ For
EPA requests the following
example, an alternate definition for
information:
small farm could come from the
#38—Small Farm Exemption—
Economic Research Service at USDA,14
General: EPA requests comment on
which classifies sizes based on revenue.
whether ‘‘small farms’’ should be
The USDA defines small farms to have
exempted from reporting animal waste
annual gross cash farm income (GCFI) of
air emissions. If so, how should they be
less than $350,000. If revenue is used to
exempted? EPA requests any
define ‘‘small farms’’, the farms would
information that the Agency can use to
develop a justification to exempt ‘‘small make the determination as to whether
they were subject to the exemption,
farms’’ from reporting air emissions
unless they voluntarily provide the
under EPCRA. Similarly, the Agency is
applicable information. Any revenuerequesting any information that
based definition would make it
supports not exempting ‘‘small farms.’’
challenging for EPA, or other agencies,
#39—Small Farm Exemption—
to conduct reporting compliance and
Criteria: EPA requests comment on the
independently determine whether a
criteria that should be considered in
establishing a potential exemption for
13 A table of EPA’s NPDES regulatory definitions
small farms. For example, should an
of large, medium, and small CAFOs can be viewed
exemption be based on animal number
here: https://www3.epa.gov/npdes/pubs/sector_
thresholds at the operation; animal
table.pdf.
11 https://www.regulations.gov/document/EPA-
HQ-SFUND-2007-0469-1359.
12 https://www.regulations.gov/document/EPAHQ-OLEM-2018-0318-0405.
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14 USDA. 2022. Economic Research Service. Farm
Structure and Contracting. Available at: https://
www.ers.usda.gov/topics/farm-economy/farmstructure-and-organization/farm-structure-andcontracting/.
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farm meets the exemption threshold.
For example, EPA, or other another
agency, would have to determine if
revenue information is available, and
whether the source of revenue (e.g.,
from the livestock at the farm or from
another source such as crop production)
is significant in defining farm size for
EPCRA reporting purposes.
No direct comments were received to
assist the Agency in defining ‘‘small
farms’’ in the 2008 nor 2019
rulemakings.
Request for Information
EPA requests the following
information:
#40—Small Farm Definition: The
Agency is soliciting comment and
information on how to define ‘‘small
farm’’ in the context of creating a
potential reporting exemption.
Specifically, EPA is soliciting input on
applying the definition of small farms
from NPDES or USDA to EPCRA
reporting. Are there other small farm
definitions that may be more
appropriate for EPCRA reporting? Are
there certain attributes from ‘‘small
farms’’ that correlate with quantity of air
emissions (e.g., is there a certain level
of farm revenue that correlates to farms
with smaller manure management
operations)?
3. Animal Waste Management Methods
for ‘‘Small Farms’’
EPA seeks information on animal
waste management methods that could
be used to differentiate farm size and
how such methods would affect air
emissions of ammonia and hydrogen
sulfide.
In examining this issue, the Agency
reviewed comments received on the
2008 and 2019 rules, though no
comments explicitly addressed how to
differentiate farms by size.
Request for Information
EPA requests the following
information:
#41—Small Farm—Waste Handling:
EPA is soliciting information and
comment on certain waste management
practices that could be used to support
an exemption for small farms, if EPCRA
reporting is reinstated. Specifically, the
Agency seeks information on various
animal waste handling methods based
on size of operation (number of animals)
and species of animals that would be
different at small farms versus medium
and large farms and may affect air
emissions of ammonia and hydrogen
sulfide.
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4. Health Impacts From ‘‘Small Farms’’
Section IV.A in this document
outlines the health impacts from animal
waste air emissions, which are further
detailed in the TBD. This section is
intended to solicit comment and
information regarding any distinction
that could be made between adverse
health impacts from air emissions from
small farms versus medium and large
farms.
Request for Information
EPA requests the following
information:
#42—Small Farm—Health Impacts:
The Agency is soliciting information on
health impacts from different size farms
to determine if lack of adverse health
impacts would support a reporting
exemption for small farms, if EPCRA
reporting is reinstated through a
potential future rule. Conversely, the
Agency is also soliciting information
that demonstrates adverse health
impacts from animal waste air
emissions from ‘‘small farms.’’ When
submitting information, the Agency
requests the commenters to provide any
information on how the requester or
information is defining ‘‘small farm.’’
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5. State, Tribal, and Local Emergency
Planners and Responders Use of ‘‘Small
Farm’’ Animal Waste Air Emissions
Information
Reinstating animal waste air
emissions reporting requirements would
require owners or operators of covered
farms to provide initial notification to
either the SERC or TERC, and the LEPC
or TEPC in the event of a release of an
EPCRA EHS, as required by EPCRA
section 304, or of a CERCLA hazardous
substance in an amount equal to or
greater than the RQ for that substance
within a 24-hour period. Within 30 days
of the initial notification, farms must
submit a written follow-up report to
these agencies. EPA recognizes that
reinstating EPCRA animal waste air
emissions reporting will increase the
number of notifications (ex: telephone,
email, etc.) and written release reports
submitted to SERCs or TERCs and
LEPCs or TEPCs. These agencies will
have the responsibility of receiving
initial notifications and managing the
reports as well as making the
information publicly available as part of
the EPCRA right-to-know provisions.
Previous comments submitted to EPA
on the 2008 rulemaking include
comments from LEPCs stating their
support for a reporting exemption
because there would likely be no
federal, state or local emergency
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response to such release reports.15 EPA
also received comments from the
National Association of SARA Title III
Program Officials (NASTTPO), an
EPCRA-related association for state,
tribal, and local EPCRA implementing
agencies, supporting the 2019 EPCRA
reporting exemption (84 FR 27533).16
NASTTPO stated that these reports are
of no particular value to LEPCs and first
responders and instead are generally
ignored because they do not relate to
any specific event. The NASTTPO noted
that open dialogue and coordination
between local emergency authorities
and animal farming operations can be
more effective than EPCRA-required
release reporting for farms that do not
handle quantities of chemicals
designated under EPCRA as EHSs.17
While some state and local agencies
have stated they support not receiving
release reports of animal waste air
emissions from farms, the EPA believes
there may be value in providing these
reports for fenceline communities.
Request for Information
EPA requests information from
SERCs, TERCs, LEPCs, and TEPCs on
the usefulness of information pertaining
to ‘‘small farm’’ animal waste air
emissions for the purposes of emergency
planning and response.
#43—State, Local, and Tribal Impacts:
Through prior public comment periods
from previous rulemakings, as well as
the ongoing coordination between EPA
and SERCs, TERCs, and LEPCs, the
Agency has heard that state, tribal, and
local emergency planners and
responders would not use EPCRA
release reports of animal waste air
emissions from farms, and so, the
Agency is inferring that if EPCRA
reporting is reinstated, an exemption for
small farms would be well received by
state, tribal, and local emergency
planners and responders. The Agency is
requesting any new comments and
information that would support or
contradict this position. Regarding small
farms, if EPCRA reporting is reinstated
without a small farm exemption, EPA is
requesting comment on whether state,
tribal, and local implementing agencies
would process and utilize release
reports for animal waste air emissions
from small farms differently from
reports from larger farms.
15 See comments submitted with docket IDs:
EPA–HQ–SFUND–2007–0469–0498; EPA–HQ–
SFUND–2007–0469–0215.
16 See comment submitted with docket ID: EPA–
HQ–OLEM–2018–0318–0238.
17 See NASTTPO letter as part of comment
submitted with docket ID: EPA–HQ–OLEM–2018–
0318–0236.
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80235
6. Adjusting the RQs of Ammonia and
Hydrogen Sulfide for Animal Waste Air
Emissions
One way EPA could potentially
reduce reporting of air emissions from
animal waste for small farms is by
adjusting the RQs or creating industry
and media-specific RQs. The existing
RQs for ammonia and hydrogen sulfide
are both set at 100 pounds. Any release
of either of these substances at or above
the RQ in a 24-hour period would
require reporting under EPCRA.
Establishing Category-Specific Animal
Waste Air Emissions RQs
CERCLA section 103 requires
immediate notification to the National
Response Center whenever an RQ or
more of a CERCLA hazardous substance
is released in a 24-hour period.
Similarly, EPCRA section 304 requires
notification to the SERC or TERC and
the LEPC or TEPC when there is a
release of an RQ or more of either a
CERCLA hazardous substance or an
EPCRA EHS in any 24-hour period. For
substances listed under both CERCLA
(40 CFR 302.4) and EPCRA (40 CFR part
355, Appendices A and B), the
applicable RQ is established under
CERCLA and adopted under EPCRA
(April 22, 1987, 52 FR 13378). For EHSs
not listed under CERCLA, EPA used the
EPCRA threshold planning quantities
(TPQs) to assign RQs, by raising the
statutory RQ (one lb) to be the same as
their TPQs.
EPA adopted a five-level system for
RQs of 1, 10, 100, 1,000, and 5,000
pounds for CERCLA reporting. These
levels were originally established
pursuant to CWA section 311 (40 CFR
part 117). EPA has authority to establish
and adjust RQs for hazardous
substances under CERCLA and for
EPCRA EHSs.
EPCRA additionally requires EPA to
consider and establish TPQs for EHSs,
which is the quantity of the substance
present at a facility for which
emergency planning notification is
required under EPCRA section 302.
Currently, the TPQ for ammonia and
hydrogen sulfide is 500 lb for all
industry sectors. The TPQ methodology
is separate from the RQ methodology
and was developed specifically to
reflect a quantity that could cause
serious health consequences if
accidentally released. Generally, the
TPQ for a substance should be higher
than the RQ, which is the case for most
EHSs. For other EHSs, the TPQ is the
same quantity as the RQ, which is
dependent on the criteria and the
ranking factor established for TPQ and
RQ. In a future rulemaking, if EPA were
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to raise the RQs for hydrogen sulfide
and ammonia from animal waste air
emissions at farms above the existing
500-pound TPQ (i.e., to either 1,000 or
5,000 lb), the Agency may need to
address the TPQs for ammonia and
hydrogen sulfide emitted from animal
waste from farms, since those situations
may not be appropriate for emergency
planning purposes.
Based on publicly available
information, EPA developed
preliminary estimates of the reporting
universe and the numbers of small
farms under several possible RQs.
Under the existing RQ of 100 pounds,
approximately 37,891 of the 1.25
million farms, based on USDA’s 2017
Census of Agriculture, would be
required to report releases of air
emissions from animal waste, which
comprises approximately 3% of farms.
Using the NPDES CAFO size categories,
this estimate of 37,891 farms includes
approximately 3,000 small farms. If the
RQ for both ammonia and hydrogen
were raised to 500 pounds, the
preliminary estimated regulated
universe would decrease from 37,891 to
approximately 15,000 farms; at 1,000
pounds RQ, the estimated regulated
universe would decrease even further to
approximately 5,000 reporting farms.
Additionally, at an RQ of 1,000 pounds,
EPA estimates that no small farms,
under the NPDES definition, would
exceed the reportable quantity. See the
TBD for the analysis of number of
regulated farms at different RQs.
Request for Information
EPA requests the following
information relating to adjusting the
RQs of ammonia and hydrogen sulfide
for animal waste air emissions:
#44—RQ Adjustment—General: EPA
requests comments and supporting
information, if available, on the
potential of adjusting the RQs for
ammonia and hydrogen sulfide to
reduce the reporting burden for small
farms, based on the existing RQ
methodology.
#45—Industry-Specific RQ
Adjustment: The Agency is soliciting
comment and information on creating
industry and/or media-specific animal
waste air emissions RQs for farms only,
where all non-farming industries would
retain the existing 100-pound RQs for
ammonia and hydrogen sulfide, but
animal waste at farming operations
would have separate, higher RQs for
ammonia and hydrogen sulfide.
Additionally, the Agency is requesting
comment and information on what the
‘‘farm-specific’’ RQs should be. The
Agency is seeking information that
supports or refutes the concept of
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separate RQs for the same hazardous
substance.
E. National Report on Animal Waste
Emissions
The issue of whether farms should
report under EPCRA has been through
various rulemakings and litigation since
2008. The decision seems to be binary
(i.e., farms report or they do not). The
Agency is including this section of the
ANPRM to solicit comment and
information on potential creative
solutions to provide information to
fenceline communities on air emissions
from animal wastes without requiring
farms with having to estimate and report
to their state, tribal and local agencies.
Request for Information
EPA requests the following
information on finding a creative
solution to reporting animal waste air
emissions:
#46—National Report based on USDA
or State Data: EPA contemplated
developing a national report using
USDA Census data to gather locations of
farms and applying the contribution
factors developed under NAEMS.
However, the USDA Census dataset only
supplies farm locations at the countylevel, and there are additional
restrictions on sharing farm data when
an individual farm can be identified.
The EPA conducted the county-level
analysis with the USDA data, which can
be found in the TBD. However, EPA
does not believe that county-level data
will be granular enough for fenceline
communities to understand the amounts
and impacts of animal waste air
releases. The EPA also evaluated all the
state datasets we found that included
farm locations (see the TBD). However,
the handful of state datasets are well
short of building a national report on
animal waste air emissions. The Agency
is soliciting comment and information
on our assessment of using USDA
Census data and datasets from state
agencies. We are also soliciting
comment and information on any other
datasets that may be used to develop a
national report of air emissions. Finally,
the Agency is soliciting comment on
whether this type of national report
would/should be a compromise for this
long-standing issue.
#47—Other Technology for Estimating
Air Releases: The Agency is soliciting
comment and information on newer
technologies that could be applied to
understanding animal waste air
emissions and then distributing that
information to fenceline communities.
For example, are there existing
technologies, such as satellite-based
instruments, to measure ammonia and/
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or hydrogen sulfide that can be applied
at a granular enough level to show
quantities released from individual
farms?
#48—Other Solutions: The Agency is
soliciting comment and information on
other possible solutions to providing
animal waste air emissions to fenceline
communities without requiring farms
with reporting.
V. Request for Comment and Additional
Information
EPA is seeking comment on all
questions and topics described in this
ANPRM. In addition, EPA encourages
all interested persons to identify and
submit comments on other issues
relevant to EPA’s consideration of the
potential development of future
regulations pertaining to animal waste
air emission reporting under EPCRA.
EPA requests that commenters making
specific recommendations include
supporting documentation, where
appropriate.
Instructions for providing written
comments are provided under
ADDRESSES, including how to submit
any comments that contain CBI or PBI.
VI. What are the Next Steps EPA will
take?
EPA intends to carefully review all
comments and information received in
response to this ANPRM. Once that
review is completed, EPA will
determine whether to pursue a proposed
rule to reinstate air emission reporting
from animal waste at farms under
EPCRA.
VII. Statutory and Executive Order
Reviews
Under Executive Order 12866,
entitled Regulatory Planning and
Review as amended by Executive Order
14094: Modernizing Regulatory Review,
EPA submitted this action to the Office
of Management and Budget (OMB). Any
changes made in response to
recommendations received as part of
Executive Order 12866 review have
been documented in the docket for this
action. Because this action does not
propose or impose any requirements,
other statutory and executive order
reviews that apply to rulemaking do not
apply. Should EPA subsequently
determine to pursue a rulemaking, EPA
will address the statutes and executive
orders as applicable to that rulemaking.
Nevertheless, the Agency welcomes
comments and/or information that
would help the Agency to assess any of
the following: the potential impact of a
rule on small entities pursuant to the
Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq.); potential impacts on
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules
state, local, or tribal governments
pursuant to the Unfunded Mandates
Reform Act (UMRA) (2 U.S.C. 1531–
1538); federalism implications pursuant
to Executive Order 13132, entitled
Federalism (64 FR 43255, November 2,
1999); availability of voluntary
consensus standards pursuant to section
12(d) of the National Technology
Transfer and Advancement Act of 1995
(NTTAA), Public Law 104–113; tribal
implications pursuant to Executive
Order 13175, entitled Consultation and
Coordination with Indian Tribal
Governments (65 FR 67249, November
6, 2000); environmental health or safety
effects on children pursuant to
Executive Order 13045, entitled
Protection of Children from
Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997);
energy effects pursuant to Executive
Order 13211, entitled Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use (66 FR 28355, May
22, 2001); paperwork burdens pursuant
to the Paperwork Reduction Act (PRA)
(44 U.S.C. 3501); or human health or
environmental effects on minority or
low-income populations pursuant to
Executive Order 12898, entitled Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations (59 FR 7629,
February 16, 1994) and Executive Order
14096, entitled Revitalizing Our
Nation’s Commitment to Environmental
Justice for All (88 FR 25251, April 21,
2023). The Agency will consider such
comments during the development of
any subsequent rulemaking.
Additional information about statutes
and executive orders can be found at
https://www.epa.gov/laws-regulations/
laws-and-executive-orders.
List of Subjects in 40 CFR Part 355
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Environmental protection, Air
pollution control, Chemicals, Disaster
assistance, Hazardous substances,
Hazardous waste, Natural resources,
Penalties, Reporting and recordkeeping
requirements, Superfund.
Michael S. Regan,
Administrator, Environmental Protection
Agency.
[FR Doc. 2023–25270 Filed 11–16–23; 8:45 am]
BILLING CODE 6560–50–P
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 2360
[BLM_HQ_FRN_MO4500175868]
RIN 1004–AE95
Management and Protection of the
National Petroleum Reserve in Alaska;
Extension of Comment Period
Bureau of Land Management,
Interior.
ACTION: Proposed rule; extension of
comment period.
AGENCY:
On September 8, 2023, the
Bureau of Land Management (BLM)
published in the Federal Register a
proposed rule that would revise the
framework for designating and assuring
maximum protection of Special Areas’
significant resource values and protect
and enhance access for subsistence
activities throughout the National
Petroleum Reserve in Alaska (NPR–A).
The proposed rule would also
incorporate aspects of the NPR–A
Integrated Activity Plan approved in
April 2022. On October 24, 2023, the
BLM extended the comment period to
November 17, 2023. The BLM has
determined that it is appropriate to
further extend the comment period for
the proposed rule by 20 days, until
December 7, 2023, to allow for
additional public comment.
DATES: The comment period for the
proposed rule that originally published
on September 8, 2023, at 88 FR 62025,
and was extended on October 24, 2023,
at 88 FR 72985, ends on November 17,
2023. Under this further extension,
comments must now be submitted on or
before December 7, 2023. The BLM need
not consider or include in the
administrative record for the final rule
comments that the BLM receives after
the close of the comment period or
comments delivered to an address other
than those listed in the ADDRESSES
section.
SUMMARY:
Mail, personal, or
messenger delivery: U.S. Department of
the Interior, Director (HQ–630), Bureau
of Land Management, 1849 C St. NW,
Room 5646, Washington, DC 20240,
Attention: 1004–AE80. Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search-box,
enter ‘‘RIN 1004–AE95’’ and click the
‘‘Search’’ button. Follow the
instructions at this website.
FOR FURTHER INFORMATION CONTACT:
James Tichenor, Advisor—Office of the
Director, at 202–573–0536 or jtichenor@
ADDRESSES:
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80237
blm.gov with a subject line of ‘‘RIN
1004–AE95.’’ For questions relating to
regulatory process issues, contact Faith
Bremner at fbremner@blm.gov.
Individuals in the United States who are
deaf, blind, hard of hearing, or have a
speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:
Public Comment Procedures
If you wish to comment on this
proposed rule, you may submit your
comments to the BLM, marked with the
number RIN 1004–AE95, by mail,
personal or messenger delivery, or
through https://www.regulations.gov
(see the ADDRESSES section). Please note
that comments on this proposed rule’s
information collection burdens should
be submitted to the OMB as described
in the ADDRESSES section. Please make
your comments on the proposed rule as
specific as possible, confine them to
issues pertinent to the proposed rule,
and explain the reason for any changes
you recommend. Where possible, your
comments should reference the specific
section or paragraph of the proposal that
you are addressing. The comments and
recommendations that will be most
useful and likely to influence agency
decisions are:
1. Those supported by quantitative
information or studies; and
2. Those that include citations to, and
analyses of, the applicable laws and
regulations.
The BLM is not obligated to consider
or include in the Administrative Record
for the final rule comments that we
receive after the close of the comment
period (see DATES) or comments
delivered to an address other than those
listed above (see ADDRESSES).
Comments, including names and street
addresses of respondents, will be
available for public review at the
physical location listed under
ADDRESSES during regular business
hours (7:45 a.m. to 4:15 p.m. EST),
Monday through Friday, except
holidays. Before including your address,
telephone number, email address, or
other personal identifying information
in your comment, be advised that your
entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment
to withhold from public review your
personal identifying information, we
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]]>Agencies
[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Proposed Rules]
[Pages 80222-80237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25270]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 355
[EPA-HQ-OLEM-2023-0142; FRL-10285-01-OLEM]
RIN 2050-AH31
Potential Future Regulation for Emergency Release Notification
Requirements for Animal Waste Air Emissions Under the Emergency
Planning and Community Right-to-Know Act (EPCRA)
AGENCY: Environmental Protection Agency (EPA).
[[Page 80223]]
ACTION: Advance Notice of Proposed Rulemaking (ANPRM).
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or Agency) is
soliciting information pertaining to and is requesting comments to
assist in the potential development of regulations to reinstate the
reporting of animal waste air emissions at farms under the Emergency
Planning and Community Right-to-Know Act (EPCRA). The Agency is
soliciting comments under five general categories: health impacts;
implementation challenges; costs and benefits; small farm definition
and potential reporting exemption; and national report on animal waste
air emissions. Requiring reporting of animal waste air emissions may
advance the community right-to-know aspect of EPCRA by providing the
public with information that may impact their health and the
environment. This information may advance EPA's environmental justice
goals of increasing the awareness of the potential impact these
emissions have on communities with environmental justice concerns. We
solicit comments on all aspects of this potential action.
DATES: Comments must be received on or before February 15, 2024.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2023-0142, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, EPA-HQ-OLEM-2023-0142 Docket, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: William Noggle, U.S. Environmental
Protection Agency, Office of Emergency Management, 1200 Pennsylvania
Avenue NW, Washington, DC 20460; 202-566-1306; [email protected].
SUPPLEMENTARY INFORMATION: Organization of this document. The
information in this preamble is organized as follows:
I. Public Participation
A. Written Comments
B. Comment Headings
II. General Information
A. Does this ANPRM apply to me?
B. What is the purpose of this ANPRM?
C. Legal authority
III. Background
A. Overview
B. Release Reporting Requirements Under CERCLA and EPCRA
C. Continuous Release Reporting (CRR) Regulations
D. Regulatory and Legal Background
1. 2008 CERCLA/EPCRA Reporting Exemption Rule and Related
Litigation
2. 2018 FARM Act and Related 2018 CERCLA Rule
3. 2019 EPCRA Rule and Related Litigation
4. Executive Order 13990, January 20, 2021
IV. What information is EPA seeking?
A. Health Impacts From Animal Waste Air Emissions
B. Implementation Challenges
1. National Air Emissions Monitoring Study (NAEMS)
2. Emissions Calculator and Guidance on Estimating Amounts of
Air Releases
3. Grazing Operations
4. Use of Continuous Release Reporting by Farms
5. Citizen Suits
6. Privacy Concerns
7. EPCRA National Database
C. Costs and Benefits
1. Estimated Regulated Universe
2. Burden Estimates
3. Environmental Justice and Community Right-to-Know
D. Small Farms
1. Potential Reporting Exemption for ``Small Farms''
2. Defining ``Small Farms''
3. Animal Waste Management Methods for ``Small Farms''
4. Health Impacts From ``Small Farms''
5. State, Tribal, and Local Emergency Planners and Responders
Use of ``Small Farm'' Animal Waste Air Emissions Information
6. Adjusting the RQs of Ammonia and Hydrogen Sulfide for Animal
Waste Air Emissions
E. National Report on Animal Waste Emissions
V. Request for Comment and Additional Information
VI. What are the next steps EPA will take?
VII. Statutory and Executive Order Reviews
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2023-
0142, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. The EPA may
publish any comment received to its public docket. Do not submit to
EPA's docket at https://www.regulations.gov any information you
consider to be Confidential Business Information (CBI), Proprietary
Business Information (PBI), or other information whose disclosure is
restricted by statute. Multimedia submissions (audio, video, etc.) must
be accompanied by a written comment. The written comment is considered
the official comment and should include discussion of all points you
wish to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the
full EPA public comment policy; information about CBI, PBI, or
multimedia submissions; and general guidance on making effective
comments.
B. Comment Headings
Commenters should review the discussions in the preamble and are
encouraged to comment on any matter that is addressed by this ANPRM.
For comments submitted through postal mail or https://www.regulations.gov, EPA is requesting that commenters identify their
comments on specific issues by using the appropriate number and comment
headings listed below to make it simpler for the Agency to process your
comment. If your comment covers multiple issues, please use all the
heading numbers and names that relate to that comment. These are the
comment headings for specific issues in this ANPRM:
#1--Health Impacts (see Section IV.A)
#2--Emissions Estimating Methodologies (see Section IV.B.1)
#3--2005 Compliance Agreement (see Section IV.B.1)
#4--Emissions Calculator--General (see Section IV.B.2)
#5--Emissions Calculator--Continuous Release Reporting (see Section
IV.B.2)
#6--Accuracy of Reported Release Quantity (see Section IV.B.2)
#7--Turkey and Beef Contribution Factors (see Section IV.B.2)
#8--Estimating Emissions from Less Common Species (see Section
IV.B.2)
#9--Estimating Emissions from Atypical Farming Operations (see
Section IV.B.2)
#10--Cutoffs for Estimating (see Section IV.B.2)
#11--Other Guidance (see Section IV.B.2)
#12--Grazing Operations (see Section IV.B.3)
#13--Application of Continuous Release Reporting (see Section
IV.B.4)
[[Page 80224]]
#14--Application of Upper and Lower Bounds (see Section IV.B.4)
#15--Exceptions to Continuous Release Reporting (see Section IV.B.4)
#16--Benefit of Continuous Release Reporting Data (see Section
IV.B.4)
#17--Continuous Release Reporting--Other (see Section IV.B.4)
#18--Citizen Suits--Wholly Past Violations (see Section IV.B.5)
#19--Citizen Suit Cost and Benefits (see Section IV.B.5)
#20--Citizen Suit--Guidance (see Section IV.B.5)
#21--Citizen Suit--Other (see Section IV.B.5)
#22--Privacy Concerns (see Section IV.B.6)
#23--Privacy Concerns--Other (see Section IV.B.6)
#24--National EPCRA Database--General (see Section IV.B.7)
#25--National Database--Managing Right-to-Know Data (see Section
IV.B.7)
#26--National Database--Managing Reports from Facilities (see
Section IV.B.7)
#27--National Database--Animal Waste Air Emissions Reporting (see
Section IV.B.7)
#28--National Database--Facility Benefits and Disadvantages (see
Section IV.B.7)
#29--National Database--Managing FOIA Requests (see Section IV.B.7)
#30--National Database--Other (see Section IV.B.7)
#31--Regulated Universe--Number of Farms Reporting (see Section
IV.C.1)
#32--Burden--Reporting Farms (see Section IV.C.2)
#33--Burden--Non-Reporting Farms (see Section IV.C.2)
#34--Burden--Small Farms (see Section IV.C.2)
#35--Burden--Qualitative Costs (see Section IV.C.2)
#36--Benefits--Environmental Justice (see Section IV.C.3)
#37--Indirect Benefits (see Section IV.C.3)
#38--Small Farm Exemption--General (see Section IV.D.1)
#39--Small Farm Exemption--Criteria (see Section IV.D.1)
#40--Small Farm Definition (see Section IV.D.2)
#41--Small Farm--Waste Handling (see Section IV.D.3)
#42--Small Farm--Health Impacts (see Section IV.D.4)
#43--State, Local, and Tribal Impacts (see Section IV.D.5)
#44--RQ Adjustment--General (see Section IV.D.6)
#45--Industry-Specific RQ Adjustment (see Section IV.D.6)
#46--National Report based on USDA or State Data (see Section IV.E)
#47--Other Technology for Estimating Air Releases (see Section IV.E)
#48--Other Solutions (see Section IV.E)
Other Comments (Section V)
II. General Information
A. Does this ANPRM apply to me?
A list of entities that could be affected by a potential future
rulemaking include, but are not limited to:
Table 1--Entities Potentially Affected by a Future Rulemaking
------------------------------------------------------------------------
Type of entity Examples of potentially affected entities
------------------------------------------------------------------------
Industry..................... NAICS Code 112--Animal Production.
State and/or Local NAICS Code 999200--State Government,
Governments. 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.
------------------------------------------------------------------------
NAICS = North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by a future
rulemaking. 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 Is the purpose of this ANPRM?
On June 13, 2019, the Agency published a final rule (84 FR 27533)
which exempted reporting of animal waste air emissions under EPCRA for
all farms, regardless of size. The Agency is reconsidering that final
rule and through this ANRPM is seeking information that may assist with
a potential future rulemaking requiring farms to report air emissions
of extremely hazardous substances from animal waste under EPCRA.
EPA is specifically soliciting information on the following five
topics: (1) health impacts; (2) implementation challenges; (3) costs
and benefits; (4) small farm definition and reporting exemption, and
(5) a national report on animal waste air emissions. Information
collected during the public comment period for this ANPRM will better
inform the Agency on whether to pursue a proposed rule, as well as
assist the Agency on how best to implement the reinstating of EPCRA
reporting from farms, if such a rule is finalized. The Agency is also
requesting comments and information on any other topics relevant to
conducting a future rulemaking on EPCRA reporting of air emissions from
animal waste on farms. The solicitation of information in this ANPRM
does not necessarily mean any action on farms will occur.
The solicitation of comment on these matters should not be read as
EPA suggesting legal ambiguity in the relevant regulations or
recognizing a particular interpretation by EPA of either EPCRA, the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA), or their implementing regulations. For purposes of
this comment solicitation, exploration of ways to further clarify
particular aspects of the existing regulations should not be viewed as
an indication that the existing language is inadequate, or in any way
be seen to undermine the Agency's ability to enforce these regulations
as written.
C. Legal authority
This advanced notice of proposed rulemaking (ANPRM) 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). Any future
rulemaking would fall 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).
III. Background
A. Overview
Animal waste air emissions reporting from farms has been subject to
a complex history of EPA regulatory actions, subsequent legal
challenges, and Congressional legislation. Animal waste can generate
potentially harmful air emissions of ammonia and hydrogen sulfide,\1\
which are listed as hazardous substances (HSs) under CERCLA and as
extremely hazardous substances (EHSs) under EPCRA. The following
sections provide a discussion of the regulatory reporting requirements
and the history of prior regulatory and legal actions leading to this
ANPRM.
---------------------------------------------------------------------------
\1\ Air emissions from animal wastes on farms are generally a
result of decomposition of the animal waste.
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[[Page 80225]]
B. Release Reporting Requirements under CERCLA and EPCRA
CERCLA and EPCRA are separate, but interrelated, environmental
statutes that work together to provide notification of qualifying
releases of HSs and EHSs to the appropriate government authorities. In
general, CERCLA section 103 provides for notice to federal officials,
whereas EPCRA section 304 provides for notice to state, tribal, and
local officials. Section 103 of CERCLA requires the person in charge of
a vessel or facility to immediately notify the National Response Center
(NRC) \2\ when there is a release of an HS, as defined under CERCLA
section 101(14), in an amount equal to or greater than the reportable
quantity (RQ) for that substance within a 24-hour period. These
requirements are codified in the CERCLA regulations at 40 CFR part 302.
In addition to these CERCLA reporting requirements, EPCRA section 304
generally requires owners or operators of certain facilities \3\ to
immediately notify state, tribal and local authorities when there is a
release of an EHS, as defined under EPCRA section 302, or of a CERCLA
hazardous substance in an amount equal to or greater than the RQ for
that substance within a 24-hour period. These requirements are codified
in the EPCRA regulations at 40 CFR part 355 subpart C.
---------------------------------------------------------------------------
\2\ NRC is a part of the federally established National Response
System and staffed 24 hours a day by the U.S. Coast Guard. It is the
designated federal point of contact for reporting all oil, chemical,
radiological, biological and etiological discharges into the
environment, anywhere in the United States and its territories.
\3\ The EPCRA definition of facility at 40 CFR 355.16: means all
buildings, equipment, structures, and other stationary items that
are located on a single site or on contiguous or adjacent sites and
that are owned or operated by the same person (or by any person that
controls, is controlled by, or under common control with, such
person). Facility includes manmade structures, as well as all
natural structures in which chemicals are purposefully placed or
removed through human means such that it functions as a containment
structure for human use. For purposes of emergency release
notification, the term includes motor vehicles, rolling stock, and
aircraft.
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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), the federal government's framework
for responding to both oil discharges and hazardous substance releases.
Related, notice under EPCRA is given to the State or Tribal Emergency
Response Commission (SERC or TERC) \4\ for any state or tribal region
likely to be affected by the release and to the community emergency
coordinator for the Local or Tribal Emergency Planning Committee (LEPC
or TEPC) \5\ for any area likely to be affected by the release so that
state, tribal and local authorities have information to help protect
the community. As stated in the title of the statute, EPCRA also has an
important community right-to-know component that provides for public
availability of release notifications pursuant to EPCRA section 324.
---------------------------------------------------------------------------
\4\ SERC is defined at 40 CFR 355.61 as: the State Emergency
Response Commission for the state in which the facility is located
except where the facility is located in Indian Country, in which
case, SERC means the Emergency Response Commission for the tribe
under whose jurisdiction the facility is located. In the absence of
a SERC for a state or Indian Tribe, the governor or the chief
executive officer of the tribe, respectively, shall be the SERC.
Where there is a cooperative agreement between a state and a tribe,
the SERC shall be the entity identified in the agreement.
\5\ LEPC is defined at 40 CFR 355.61 as: the Local Emergency
Planning Committee appointed by the State Emergency Response
Commission. TEPCs are appointed by the TERCs.
---------------------------------------------------------------------------
Release reporting under EPCRA depends, in part, on whether
reporting is required under CERCLA. Specifically, EPCRA section 304(a)
provides for reporting under the following three release scenarios:
1. 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).
2. 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).
3. 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).
C. Continuous Release Reporting (CRR) Regulations
There are situations where known or anticipated releases may be
subject to significantly reduced reporting requirements, rather than
the immediate or occurrence-based reporting of CERCLA section 103(a)
and EPCRA section 304(a) as outlined above. CERCLA section 103(f) and
its attendant regulations at 40 CFR 302.8 provide such relief for a
release of a hazardous substance that is continuous and stable in
quantity and rate. Similarly, EPA relied on EPCRA section 304(a)(2) to
promulgate analogous reduced reporting regulations for continuous
releases under EPCRA at 40 CFR 355.32. Those EPCRA regulations instruct
a facility to rely on and follow, in part, the related CERCLA
regulations at 40 CFR 302.8. As discussed further in this document, the
continuous release reporting option is meant to save facilities and
response authorities from the unnecessary burden of notification each
time a repeated release--that is continuous and stable--occurs.
Under CERCLA section 103(a), regulated entities are required to
immediately report releases of CERCLA hazardous substances that meet or
exceed the RQ threshold. In lieu of reporting for each release,
however, certain continuous releases can qualify for reduced reporting
(see 40 CFR 302.8), which allows the regulated entity to only provide
the following:
(1) Initial telephone notification made to the NRC;
(2) Initial 30-day written notification to the EPA;
(3) One-year follow-up written notification to the EPA;
(4) Notification to the EPA of a change in the composition or
source(s) of the release or in the other information submitted in the
initial written notification; and
(5) Notification to the NRC of any increase in the quantity of the
hazardous substance being released during any 24-hour period, which
represents a statistically significant increase (SSI).
Reduced release reporting provisions are also available under
EPCRA, which requires reporting of CERCLA hazardous substances and
EPCRA extremely hazardous substances. Under the EPCRA continuous
release reporting regulations codified at 40 CFR 355.32, which cross-
reference the CERCLA regulations at 40 CFR 302.8, facilities are
required to report only items 1, 2, and 5 (from the list above) to
their SERC or TERC and LEPC or TEPC. Any changes in source or
composition (item 4) may be considered a new release, which is also
required to be reported to the SERC or TERC and the LEPC or TEPC. A
first anniversary report (item 3) is not required under EPCRA section
304.
[[Page 80226]]
CERCLA and the implementing regulations of both CERCLA and EPCRA
\6\ and their implementing regulations define whether a release
qualifies for continuous release reporting. The continuous release
regulations in 40 CFR 302.8(d)(1) provide that a facility can establish
a continuous release by ``[u]sing release data, engineering estimates,
knowledge of operating procedures, or best professional judgment to
establish the continuity and stability of the release.'' There is no
specific requirement for release monitoring or collecting release data
if a facility is relying on engineering estimates, best professional
judgment, or knowledge of operations.
---------------------------------------------------------------------------
\6\ The EPCRA continuous release reporting regulation at 40 CFR
355.32 cross-references the CERCLA definition of continuous releases
at 40 CFR 302.8(b).
---------------------------------------------------------------------------
The definitions in the continuous release regulations in 40 CFR
302.8(b) provide further assistance to determine what qualifies as a
continuous release. There, a continuous release is defined as a release
``that occurs without interruption or abatement or that is routine,
anticipated, and intermittent and incidental to normal operations or
treatment processes.'' A routine release is defined as a release ``that
occurs during normal operating procedures or processes.'' And the
phrase ``stable in quantity and rate'' is defined as a release ``that
is predictable and regular in amount and rate of emission.''
The continuous release regulations also include reporting the
normal range of releases defined in 40 CFR 302.8 as ``all releases (in
pounds or kilograms) of a hazardous substance reported or occurring
over any 24-hour period under normal operating conditions during the
preceding year.'' The upper and lower bounds of the normal range of the
release are reported in the 30-day written report under EPCRA.
D. Regulatory and Legal Background
As previously noted, the history of release reporting for air
emissions from animal waste at farms is long and complex. The following
summary of events leading to this ANPRM is not meant to be exhaustive.
Publicly available documents cited below and included in the docket
provide further background information.
1. 2008 CERCLA/EPCRA Reporting Exemption Rule and Related Litigation
Prior to 2008, all farms were subject to release reporting for air
emissions under both CERCLA and EPCRA but were eligible for reduced
continuous release reporting. In December 2008, EPA published a final
rule that exempted all farms from reporting animal waste air emissions
under CERCLA and exempted small and medium concentrated animal feeding
operations (CAFOs) \7\ from reporting such emissions under EPCRA (73 FR
76948, December 18, 2008). Large CAFOs with emissions equal to or
exceeding an RQ were still required to report under EPCRA with the
continuous release reporting option, as applicable. EPA intended the
2008 rulemaking to reduce the reporting burden on farms and emergency
response agencies.
---------------------------------------------------------------------------
\7\ EPA defined different sizes of farms using the National
Pollution Discharge Elimination System (NPDES) size definitions for
concentrated animal feeding operations (CAFOs). A table of EPA's
NPDES regulatory definitions of large, medium, and small CAFOs can
be viewed here: https://www3.epa.gov/npdes/pubs/sector_table.pdf.
---------------------------------------------------------------------------
In April 2017, the 2008 rule was vacated by the United States Court
of Appeals for the District of Columbia Circuit as arbitrary and
capricious. See Waterkeeper Alliance, et al. v. EPA, 853 F.3d 527 (D.C.
Cir. 2017). In so holding, the court acknowledged the potential health
risks of some animal waste air emissions and found that reporting could
be useful to local and state authorities who may need to investigate or
respond to these releases. The effect of the court's vacatur was to
reinstate reporting requirements for air emissions from animal waste at
all farms under CERCLA and EPCRA. The court delayed the effective date
of its ruling until May 2, 2018, to grant EPA time to develop guidance
to assist farms with meeting their reporting obligations.
2. 2018 FARM Act and Related 2018 CERCLA Rule
On March 23, 2018, President Trump signed into law the Consolidated
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 amended CERCLA section
103 to expressly exempt the reporting of air emissions from animal
waste (including decomposing animal waste) at a farm. As a result, in
August 2018, the Agency published a final rule to amend the CERCLA
regulations at 40 CFR part 302 by adding the reporting exemption for
air emissions from animal waste at farms and adding definitions of
``animal waste'' and ``farm'' from the FARM Act (83 FR 37444, August 1,
2018).
The FARM Act expressly exempted all farms from reporting air
emissions from animal waste under CERCLA but did not amend EPCRA in any
way.
3. 2019 EPCRA Rule and Related Litigation
EPA proposed a rule on November 14, 2018, to exempt all farms from
reporting air emissions from animal waste under EPCRA (83 FR 56791,
November 14, 2018). EPA received considerable comments from the public
both supporting and opposing the proposed rule. Supporters largely
agreed with EPA's interpretation of the statutes and expressed concerns
over the burden that would be placed on farms if animal waste emission
reporting was not exempt under EPCRA. Opposing commenters expressed
concerns over the environmental and health impacts of animal waste air
emissions and the public's right-to-know about these emissions. They
argued that EPA's interpretation of the statute in support of the
proposed rule was unlawful.
After consideration of all these comments, EPA finalized the rule
to promulgate the EPCRA exemption on June 13, 2019 (84 FR 27533) (the
June 2019 EPCRA Rule).
On July 9, 2019, several environmental groups, including the Rural
Empowerment Association for Community Help (REACH), the Center for
Biological Diversity, the Environmental Integrity Project, and the
Waterkeeper Alliance, amended an existing complaint to challenge the
final rule in the U.S. District Court for the District of Columbia. See
REACH v. EPA, No. 1:18-CV-02260 (Sept. 28, 2018) (the REACH case). A
number of agricultural trade associations joined the action as
intervenors, including the National Cattlemen's Beef Association, the
National Pork Producers Council, and the American Farm Bureau
Federation.
4. Executive Order 13990, January 20, 2021
On January 20, 2021, shortly after the change in administration,
President Biden issued Executive Order (E.O.) 13990, which states that
it is the policy of the new administration: ``to listen to the science;
to improve public health and protect our environment; to ensure access
to clean air and water; to limit exposure to dangerous chemicals and
pesticides; to hold polluters accountable, including those who
disproportionately harm communities of color and low-income
communities; to reduce greenhouse gas emissions; to bolster resilience
to the impacts of climate change; to restore and expand our national
treasures and monuments; and to prioritize both environmental
[[Page 80227]]
justice and the creation of the well-paying union jobs necessary to
deliver on these goals.'' (86 FR 7037, January 25, 2021).
E.O. 13990 further directed federal agencies to ``immediately
review and, as appropriate and consistent with applicable law, take
action to address the promulgation of Federal regulations and other
actions during the 4 years prior to the E.O. that conflict with these
important national objectives, and to immediately commence work to
confront the climate crisis.'' See Id. In keeping with E.O. 13990, EPA
moved the court in the REACH case to remand the June 2019 EPCRA Rule
back to the EPA on November 23, 2021. The district court granted the
remand on February 14, 2022 ``without vacatur,'' meaning the EPCRA
exemption for farms remains in place while EPA reconsiders the rule.
IV. What information is EPA seeking?
EPA is seeking comments and data that will better inform the Agency
on whether to pursue a proposed rule, as well as assist the Agency on
how best to implement the reinstating of EPCRA reporting from farms, if
such a rule is finalized. The Agency is specifically soliciting
information on the following five topics: (1) health impacts; (2)
implementation challenges; (3) costs and benefits; (4) small farm
definition and potential reporting exemption, and (5) a national report
on animal waste air emissions.
A. Health Impacts From Animal Waste Air Emissions
EPA reviewed literature about health impacts to communities in the
vicinity of farms with animal waste. A summary of the health impact
studies can be found in the Technical Background Document (TBD) in the
docket for this action. The literature review of 21 studies reporting
on health effects associated with air releases from Animal Feeding
Operations (AFOs) add to a body of evidence that exposure to AFOs is
associated with respiratory health effects, mortality, odor annoyance,
gastrointestinal illness, and other health effects. They also reveal
that populations located in close proximity to animal operations are at
a greater risk for adverse health effects compared to populations
located farther away or residing in areas without AFOs. The literature
search identified several studies showing a correlation between
proximity and exposure to animal waste and respiratory health effects,
including increased likelihood of asthma in both adults and children
and reduced lung function. Some of the studies also identified exposure
to animal waste as being correlated with mortality rates,
gastrointestinal illness, and other human health effects. The size and
type of operation, number of animals, and species may affect the
intensity of animal waste exposure. The studies also concluded that
populations located in closer proximity to animal farm operations are
at an increased risk for adverse health effects when compared to
populations located farther away or residing in areas without animal
farm operations. The studies also provided specific cases where
communities with environmental justice concerns, including those
comprising people of color, low-income individuals, and children in
specific geographic locations of the country are disproportionately
located near animal feeding operations. The location of these
populations has the potential to result in significant health impacts
on the members of these communities.
Request for Information
EPA requests the following information relating to health impacts:
#1--Health Impacts: The Agency is soliciting comment on the
literature search provided in the TBD and requesting any additional
relevant literature or other information on health impacts from animal
waste air emissions, including any indirect health impacts. The Agency
is also requesting any information on health impacts to communities
with environmental justice concerns.
B. Implementation Challenges
If the Agency reinstates EPCRA reporting, EPA anticipates a certain
level of uncertainty with determining or calculating the amount of
animal waste air emissions of ammonia and hydrogen sulfide to trigger
reporting. In the subsequent sections, the Agency is soliciting
information on estimating amounts of air emissions, as well as other
implementation challenges such as whether the continuous release
reporting requirements are applicable to farm operations and how the
influx of release reporting data could be managed.
1. National Air Emissions Monitoring Study (NAEMS)
EPA's Office of Air and Radiation (OAR) is developing
methodologies, based on data collected under the National Air Emissions
Monitoring Study (NAEMS), to estimate air emissions of ammonia,
hydrogen sulfide, particulate matter (PM), and volatile organic
compounds (VOCs) from animal waste from poultry (egg-layers and chicken
broilers), swine, and dairy livestock. The NAEMS originated in 2005
from the EPA and agriculture industry's understanding of the difficulty
in estimating air emissions from animal feeding operations. To address
the issue, the Agency entered into the Air Consent Agreement with the
animal production industry, which included approximately 2,600 entities
covering about 14,000 farms. As part of the agreement, EPA agreed not
to pursue enforcement actions for certain past violations of the Clean
Air Act, CERCLA, and EPCRA during development of the methodologies. The
methodologies, based on the NAEMS data, are being developed for poultry
(egg-layers and chicken broilers), swine, and dairy operations
utilizing air monitoring data from animal operations and statistical
analyses. The initial methodologies were released to the public
starting in 2020. EPA anticipates holding a formal public comment
period starting in late 2023 and finalizing the methods by spring 2024.
In the existing draft form, the methods use a set of variables easily
accessible to estimate emissions. These variables include type and
number of animals at the farm; beginning and ending animal weight;
waste management method(s) and if applicable; the housing type and
number of days without animals in the barn or house; and ambient
relative humidity, ambient temperature, and wind speed. Additional
information can be found at https://www.epa.gov/afos-air/national-air-emissions-monitoring-study or in docket EPA-HQ-OAR-2004-0237.
The Agency acknowledges there are livestock types, such as turkey
and beef, and operational configurations that are not covered under the
NAEMS methodologies. The subsequent section, IV.B.2, solicits comment
and information on these gaps and how to address them, if EPCRA
reporting is reinstated.
Request for Information
EPA requests the following information relating to EPA's emissions
estimating methodologies developed using data collected as part of the
NAEMS:
#2--Emissions Estimating Methodologies: EPA requests comments on
the applicability of the NAEMS methodologies for estimating air
emissions from animal waste for farm types not included as part of
NAEMS for a potential future reporting under EPCRA. For instance, data
were not collected from cage-free layer facilities and recent trends in
the industry have been toward more eggs being produced from cage-free
facilities. As part of the
[[Page 80228]]
NAEMS program, emissions data were collected from high-rise and belt-
battery layer facilities which may have different emissions than a
cage-free facility.
#3--2005 Compliance Agreement Reporting: If EPA requires reporting
under EPCRA, would there be confusion around the timing of reporting
for participants of the 2005 compliance agreement? If the Agency were
to pursue and finalize a rulemaking to reinstate EPCRA reporting for
animal waste air emissions prior to the NAEMS methods being finalized,
then NAEMS Agreement participants would not have to report until the
timeframes triggered by publication of the final NAEMS methodologies.
This point may be moot since the NAEMS methods are scheduled to be
finalized well in advance of the time needed for a possible rulemaking
to reinstate EPCRA reporting. The Agency is soliciting comment on any
outreach that EPA should conduct to avoid potential confusion.
2. Emissions Calculator and Guidance on Estimating Amounts of Air
Releases
If EPA moves forward with reinstating the EPCRA reporting
requirement for farms, the Agency may need to develop tools and
guidance to minimize the reporting burden.
EPA could develop a calculator for farms to estimate their animal
waste air emissions. The web-based emissions calculator would use the
estimation methods developed with the NAEMS data, enabling farms to
input a limited number of variables to estimate the amount of ammonia
and hydrogen sulfide air releases from animal waste. The input
variables would be information that farmers are assumed to already
know, such as location of the farm, species of animals at the farm,
species population size, waste management method(s) and if applicable,
the housing type, number of days without animals in the barn or house
and beginning and ending animal weight. The emissions calculator could
use the farm location (e.g., county or ZIP code) to obtain
meteorological data (e.g., ambient relative humidity, ambient
temperature, wind speed). The emissions calculator would perform the
calculations using the formulas derived from the NAEMS data, which
provide an estimate of release amount per day in pounds. This screening
step would identify whether a farm meets or exceeds the reportable
quantity and therefore, be subject to reporting under EPCRA. If the
emissions calculator shows that the reportable quantity is exceeded,
the farm may be able to meet the reporting requirements with continuous
release reporting. The applicable information in the emissions
calculator could then auto-populate an EPA webform for the continuous
release report form. Finally, instructions with the webform could
instruct the farmer on how to submit the continuous release report to
their appropriate state, tribal and local agencies responsible for
collecting EPCRA release reports. The Agency recognizes that the NAEMS
data does not cover all livestock species or operational
configurations. For example, common species such as turkey and beef are
not included in the Air Consent Agreement, nor are less common
livestock species, such as goat, llama, and aquaculture. If the Agency
pursues a rule to require EPCRA reporting, the Agency does not want
farmers to struggle with estimating air emissions, thus the Agency is
soliciting input and recommendations for tools and/or guidance the
Agency could develop to assist farms in estimating air emissions for
livestock and operational configurations not covered under the NAEMS
methods.
Finally, if farms are required to report under EPCRA, ideally, EPA
would provide a mechanism or threshold upfront to farms as to whether
an estimate of their emissions is even necessary (i.e., does a farm
have enough livestock to even come close to the reportable quantity?).
EPA has considered developing guidance on a minimum number of animals,
where under typical farm operations, any number of livestock below the
cutoff could not exceed the 100 pounds of air emissions for either
hydrogen sulfide or ammonia. If possible, these types of cutoffs could
be provided on EPA's website and on the front end of the emissions
calculator, so that farms with numbers of animals below the cutoff, can
quickly determine they would not need to report. EPA understands this
may not provide the level of regulatory certainty to assure farmers
that they are complying with the regulations. The Agency seeks input on
whether this type of cutoff would be helpful and what unforeseen issues
with providing such cutoffs through guidance and outreach materials
could arise. Of note, the Agency contemplated including such a cutoff
in regulatory text for a potential future rule. Under the prior 2008
rulemaking (73 FR 76948), only large CAFOs were required to report
under EPCRA, where the definition of a large CAFO (by number of
livestock) provided regulatory certainty.
Request for Information
EPA requests the following information relating to a potential
emissions calculator:
#4--Emissions Calculator--General: EPA requests comments on the
utility and function of an emissions calculator. Should EPA create a
webform tool that can calculate an estimate of air emissions from
animal wastes on farms? The Agency has a draft design of an emissions
calculator included in an appendix of the TBD to provide readers with
the look and feel of the tool. Separately, is there a need for EPA to
create a paper form or phone hotline to assist users that do not have
access to the internet? Are there other, more efficient, ways to
provide air emission estimates to farms other than through a webform
calculator?
#5--Emissions Calculator--Continuous Release Reporting: If the
emissions calculator provides an estimate that exceeds the reportable
quantity, should farmers (users) be routed from the emissions
calculator to the continuous release reporting form and the
instructions for submission to the specific state, tribal and local
agencies? The Agency is soliciting comment on this approach in general,
and on whether this is the most efficient process EPA can establish for
reporting animal waste air emissions under EPCRA (i.e., Would farms
find this helpful? Are there any other steps in the process which could
be streamlined by EPA and/or state, tribal and local agencies? Are
there alternatives that may be more efficient?).
#6--Accuracy of Reported Release Quantity: Should the calculator
include a disclaimer that the emissions are estimates of uncontrolled
emissions, and may not reflect actual emissions due to differences in
each farm operation and applications of controls? The Agency solicits
comment on adding a disclaimer and any other guidance that may be
needed.
#7--Turkey and Beef Contribution Factors: Turkey and beef are two
of the most prevalent livestock species not included in the Air Consent
Agreement. If EPCRA reporting is reinstated, the Agency would consider
publishing contribution factors for turkey and beef livestock. The
contribution factor would be a quantity of ammonia and hydrogen sulfide
emitted per animal. The farmer would only need to conduct a
``bookkeeping exercise,'' of multiplying the number of livestock by the
contribution factor, which would provide the air emission estimate.
Potential contribution factors for turkey and beef are in an appendix
in the TBD.
[[Page 80229]]
The Agency is soliciting comment and information on whether developing
contribution factors would be useful and appropriate for turkey and
beef. The Agency is also soliciting any information that could be used
to develop contribution factors for turkey and beef. See the TBD for
the Agency's preliminary review into turkey and beef emissions studies.
The contribution factors and literature search in the TBD are only
drafts to give the reader an estimate of what a turkey and beef
contribution factor may be, as well as show the relevant literature EPA
would review to develop contribution factors.
#8--Estimating Emissions from Less Common Species: The Agency is
requesting information that could be used in development of
contribution factors for less common livestock which are not included
in the NAEMS. Additionally, if the Agency reinstates EPCRA reporting,
would it be appropriate for the Agency to devote time and resources to
develop contribution factors for all conceivable farming operations?
The Agency has included some preliminary draft cutoffs in the TBD for
estimating the initial burden to all farms when determining if they
will exceed the RQs.
#9--Estimating Emissions from Atypical Farming Operations: There
may be farms unable to use the NAEMS methods because they do not apply
to their specific operation configuration. For example, cage-free egg
laying houses were not prevalent in the industry when the NAEMS was
conducted, and no data were collected to support method development. In
those cases, farms would need to use other information to estimate the
air emissions, if EPCRA reporting is reinstated. For examples of
operations that are included in the emissions calculator, see the
screenshots of a mock-up of the calculator in the appendices of the
TBD. EPA requests comment on operational configuration scenarios not
covered by the NAEMS methodologies, and subsequently not covered by the
emissions calculator, that should be included in guidance to assist the
regulated community. EPA requests comment on operational configurations
not covered by the methodologies developed from NAEMS data and requests
any information that could be used to develop tools or guidance on how
to calculate emissions from atypical farming operations.
#10--Cutoffs for Estimating: Should EPA develop guidance with de
minimis thresholds which would make clear that a farm with livestock
inventory below the threshold could not conceivably produce over 100
pounds of ammonia or hydrogen sulfide in a 24-hour period, and thus
would not have to estimate air emissions or have to report under EPCRA?
The Agency is requesting any information that could be used to develop
thresholds. Are there farming operations that could be exceptions to
such a threshold where very few animals are on the farm, but the
farming operation would have enough manure on site to emit over 100
pounds of ammonia or hydrogen sulfide in a 24-hour period?
#11--Other Guidance: EPA solicits comment on additional
implementation information EPA should consider in development of
guidance, and other implementation tools EPA could provide to farms to
reduce reporting burden and costs.
3. Grazing Operations
EPA is also seeking comment on having emissions from animals living
and being raised in grazing or pasture situations covered by a
potential future rule. A common example is beef cattle that are raised
grazing or pastured over large areas of land for a period of time in
their growth cycle. The animal waste generated while grazing or
pastured is generally widely dispersed across the landscape and is not
in a concentrated area. The beef cattle can then be transferred from
the grazing or pastured areas to feedlots or other concentrated feeding
operations to complete their life cycle. Other species similarly are
raised grazing or pastured for a period of their life cycle.
If reporting is reinstated under a potential future rule, only
farming operations that are defined as a ``facility'' would need to
report. Under EPCRA section 329 (Definitions), the term ``facility''
means ``all buildings, equipment, structures, and other stationary
items which are located on a single site or on contiguous or adjacent
sites . . .'' The term ``facility'' is further defined in the EPCRA
regulations at 40 CFR 355.61 to include ``manmade structures, as well
as all natural structures in which chemicals are purposefully placed or
removed through human means such that it functions as a containment
structure for human use.'' In general, the Agency does not currently
believe grazing operations fall under the definition of ``facility,''
unless the manure is collected and managed.
Request for Information
EPA requests the following information relating to grazing
operations:
#12--Grazing Operations: EPA seeks comment on whether the Agency's
interpretation of ``facility'' relating to grazing operations is
correct and appropriate. The Agency also seeks information on whether
clarifications of the applicability of the regulations to other farming
operations is needed.
4. Use of Continuous Release Reporting by Farms
The animal waste that farms handle or manage as part of their
normal operations of raising animals may have regular air emissions
which could fall within the scope of continuous release reporting (see
section III.C. for an overview of continuous release reporting). As
mentioned previously, continuous release reporting under EPCRA
encompasses the following three requirements, found at 40 CFR 355.32:
(1) Initial telephone notification made to the LEPC and SERC; (2)
Initial 30-day written notification to the LEPC and SERC; and (3)
notification to the LEPC and SERC of any increase in the quantity of
the hazardous substance being released during any 24-hour period, which
represents a statistically significant increase (SSI). The 30-day
written notification is submitted using a range for the quantity
released, and an SSI is anything that exceeds the upper bound of the
range identified in the initial 30-day notification. Of note, there are
no requirements for updating a continuous release report if the release
decreases below the lower bound provided in the report, and there are
no federal requirements for reporting when a continuous release has
ceased.\8\ Furthermore, the initial notification does not require
monitoring data to support the upper and lower bounds of the quantity
released; instead, the regulations allow for ``using release data,
engineering estimates, knowledge of operating procedures, or best
professional judgment'' (see 40 CFR 355.32(a) via 40 CFR 302.8(d)(1)).
Finally, a continuous release is defined as ``a release that occurs
without interruption or abatement or that is routine, anticipated, and
intermittent and incidental to normal operations or treatment
processes,'' (see 40 CFR 302.8(b); emphasis added).
---------------------------------------------------------------------------
\8\ Note: State, tribal, and local EPCRA implementing agencies
may have additional reporting requirements.
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Request for Information
EPA requests the following information relating to continuous
release reporting:
#13--Application of Continuous Release Reporting: The Agency is
soliciting comment on the appropriateness of defining all air releases
from animal waste on farms as
[[Page 80230]]
continuous releases, because they are routine, anticipated, and
intermittent and incidental to normal operations.
#14--Application of Upper and Lower Bounds: The Agency is
soliciting comment on allowing farms to apply upper and lower bounds on
their continuous release reports to estimate the highest or lowest
quantity released at any point during the year, regardless of seasonal
fluctuations in farming operations.
#15--Exceptions to Continuous Release Reporting: Given the
flexibility of the EPCRA continuous release reporting requirements, the
Agency is soliciting comment on whether there are scenarios for which
releases from animal waste at farms could not be covered under
continuous release reporting. If that is the case, the Agency requests
any information on such farming operations, so the Agency can account
for the burden these operations would incur from episodic release
reporting, instead of continuous release reporting.
#16--Benefits and Costs of Continuous Release Reporting Data: The
Agency is soliciting comment and supporting data on the usefulness of
continuous release reporting data to the surrounding communities and
SERCs and LEPCs (i.e., If the report is submitted with a large range
for the quantity released, would that help the public understand what's
in their community?).
#17--Continuous Release Reporting--Other: The Agency is soliciting
information and comment on any other issue relating to the application
of continuous release reporting by farms subject to a potential future
rule.
5. Citizen Suits
Reinstating animal waste air emissions reporting requirements would
create potential liability for farms that meet or exceed the RQ, but
fail to report, under the citizen suit provisions of EPCRA. Under EPCRA
section 326(a)(1)(A)(i), a citizen may file suit against an owner or
operator of a facility, including a farm, for failing to submit the
follow-up emergency notice of release required by EPCRA section
304(c).\9\ Before filing a citizen suit, the citizen must provide 60
days' notice of the alleged violation to the facility, the state, and
EPA, as required by EPCRA section 326(d)(1). If the alleged violator
files the missing report in that time (i.e., the violation is ``wholly
past''), EPA believes an actual lawsuit would be unlikely. Pursuant to
the Supreme Court decision in Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83 (1998), citizens may not be able to
demonstrate that they have standing to bring a suit for wholly past
violations. In practice, if a facility files a release report within 60
days of receiving notice of a citizen suit, the suit may be dismissed
with no award of attorney's fees or investigative costs. A suit also
may not be brought if EPA has ``commenced and is diligently pursuing''
an action to enforce a requirement or impose a civil penalty under
EPCRA.
---------------------------------------------------------------------------
\9\ When using continuous release reporting, the 30-day initial
written notification under 40 CFR 355.32(a), further specified under
40 CFR 302.8(e), is considered the follow-up emergency notice under
EPCRA section 304(c).
---------------------------------------------------------------------------
The Agency does not have a list of past citizen suits, but believes
they are infrequent and not focused on small farms. EPA requests
comment on potential citizen suit issues and concerns that are related
to non-reporting farms. If there are other citizen suit considerations,
EPA requests comment on these issues and concerns, including benefits
of this potential remedy. These comments may assist in the development
of guidance and outreach information to be shared with the regulated
community as part of future compliance assistance if reporting is
reinstated.
Comments received on the 2018 proposed rule included a concern of
liabilities that reporting requirements could create for farmers
because the information is ``inherently imprecise and therefore subject
to dispute.'' \10\ The Agency notes that under EPCRA section
326(a)(1)(A)(i), a citizen suit can be brought against an owner or
operator for failing to submit the follow-up emergency notice of
release required by EPCRA section 304(c). That notice includes an
``estimate of the quantity of any such substance that was released . .
.'' (see EPCRA section 304(b)(2)(C)).
---------------------------------------------------------------------------
\10\ See comment with docket ID EPA-HQ-OLEM-2018-0318-0224.
---------------------------------------------------------------------------
Request for Information
EPA requests the following information relating to potential
impacts on farms from citizen suits:
#18--Citizen Suits--Wholly Past Violations: Given that EPCRA
requires 60 days' notice before filing a citizen suit, and the decision
in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998),
could citizen suits create more than a minimal burden on farms? Given
that only an estimate needs to be provided to fulfill the requirements,
the Agency is also soliciting comment and information on the potential
for additional citizen suits based on the accuracy of the reporting
estimate.
#19--Citizen Suit Benefits and Costs: What are the potential costs
and liabilities of EPCRA citizen suits for non-reporting farms if
reporting is reinstated? The Agency is also soliciting any information
on realized benefits of a citizen suit being filed against a farm.
Finally, the Agency is soliciting information on the frequency and
number of previous citizen suits for failing to submit the follow-up
emergency notice of release required by EPCRA section 304(c), as well
as the frequency and number of 60-day notices provided to farms in
advance of the citizen suit. We realize that EPCRA reporting for animal
waste air emissions at farms is not currently required, however,
reporting was required by large CAFOs prior to 2019, which is the time
period for which EPA is seeking information.
#20--Citizen Suit--Guidance: If the Agency develops guidance on
citizen suits, what information should the guidance include?
#21--Citizen Suit--Other: The Agency is soliciting information and
comment on any other issues related to citizen suits in the context of
a potential future rulemaking to reinstate EPCRA reporting for farms.
6. Privacy Concerns
If reporting is reinstated in a future rulemaking for farms, the
public may seek access to the report under the right-to-know provision
in EPCRA section 324(a). EPA understands there may be privacy concerns
by the farmers when their personal residence is the same as the address
for the farm, in which case the submitted reports may contain personal
information that was previously unavailable from any other source to
the public. The Agency expects that most small farms will not meet the
applicable release reporting thresholds and will therefore fall outside
the scope of any EPCRA reporting requirement entirely; however, the
Agency still appreciates the concern for the small farms that would
need to report.
Request for Information
#22--Privacy Concerns: EPA seeks comment, generally, on the privacy
concerns of farmers who would be required to report animal waste air
emissions. The Agency is also seeking creative solutions that could
provide communities with information on air emissions from a farm
without disclosing the location (i.e., personal address) of a ``small''
farm.
#23--Privacy Concerns--Other: The Agency is soliciting information
and comment on any other issues related to
[[Page 80231]]
privacy concerns in the context of a potential future rulemaking to
reinstate EPCRA reporting for farms.
7. EPCRA National Database
Under EPCRA's statutory authority (42 U.S.C.11004), EPCRA emergency
release notifications (Section 304; 40 CFR 355.30) are submitted to the
SERCs or TERCs and LEPCs or TEPCs, but not to the EPA or another
federal agency. EPA recognizes that reinstatement of EPCRA animal waste
air emissions reporting will increase the number of release reports
submitted to state, tribal, and local agencies (the implementing
agencies). Under the existing authorities, the implementing agencies
will have the responsibility of receiving and managing the reports and
making the information publicly available as part of the EPCRA right-
to-know provisions.
The EPA requests comment and information on creating an EPCRA
database for animal waste air emissions information at the national
level, that would be housed at EPA. The Agency believes a centralized
EPCRA submission portal and management system can improve the reporting
program by centralizing and standardizing reporting and reducing burden
on both the implementing agencies and the regulated community.
Recognizing that existing statutory reporting requirements under EPCRA
may need to be amended to allow it, EPA also seeks comment from the
implementing agencies and the regulated community on the benefits and
challenges of creating an EPCRA national database. EPA requests comment
not only for animal air emissions, but for reporting under all sections
of EPCRA, except section 313, which is the Toxics Release Inventory
(TRI) program. Following is a list of applicable EPCRA reporting
requirements that could be built into a national system:
--Facility emergency planning notifications (40 CFR part 355, subpart
B; EPCRA section 302).
--Emergency release notifications (40 CFR part 355, subpart C; EPCRA
section 304)
--Hazardous chemical inventory reports (40 CFR part 370; EPCRA sections
311 and 312).
Currently, reporting methods are determined by the state or tribe.
These SERCs and TERCs are using a variety of submission and data
management platforms to meet their statutory obligations. Over half of
the states are using three existing submission platforms for annual
Section 312 Tier II submissions: Tier2 Submit, E-Plan, and TIER II
MANAGER. The other states use other commercial software or have state-
specific programs. Through a centralized database, EPA could collect
EPCRA reports and make those reports immediately available to state,
tribal, and local agencies, thus improving the efficiency, efficacy,
and transparency of EPCRA reporting compliance and removing the burden
to state, tribal, and local agencies receiving and managing the
submittals. The database can also reduce the burden on these
implementing agencies by providing a public right-to-know information
center. The clearinghouse would be a ``one-stop shop'' for industry,
the EPCRA implementing agencies, and the public. A national database
would provide industry the opportunity to report to multiple states and
local entities in one platform. The implementing agencies would have
access to all of the submitted information for their covered area,
reducing their administrative burden and allowing them to focus on
implementation, community safety, and compliance. The database would
handle all reporting requirements, as well as requests from the public
for information, allowing entities to use their limited resources to
improve compliance efficacy.
The EPCRA emergency planning provisions, codified under 40 CFR part
355, subpart B, include several required communications with the SERC
or TERC and/or LEPC or TEPC, such as the initial notification that a
facility is subject to EPCRA emergency planning requirements;
notification of the facility emergency coordinator; notification of any
relevant changes to emergency planning; and providing information to
the LEPC or TEPC upon request. A national database could manage, track,
and store all these required communications. Furthermore, with the
planning data, the EPA could facilitate coordination between LEPCs or
TEPCs with similar types of facilities to share best practices and
lessons learned on how to plan for specific risks.
The emergency release notification requirements, under 40 CFR part
355, subpart C, include immediate notification via phone and follow-up
written reports to the SERC or TERC and LEPC or TEPC, as well as
specific requirements for continuous release reporting requirements. A
national EPCRA database could handle these notifications, although
initial release notification may not be ideal, because initial
notifications are time-sensitive and are typically phone calls to the
LEPC or TEPC and SERC or TERC. However, the 30-day follow-up written
reports and continuous release reports could be well-suited for a
national database. LEPCs, TEPCs, TERCs and SERCs would have the benefit
of having the data standardized and stored. Additionally, EPA could
coordinate discussions on clean-up and response activities among LEPCs
and TEPCs with similar releases.
Request for Information
EPA requests the following information relating to a National EPCRA
Database:
#24--National EPCRA Database--General: The Agency is soliciting
information and comment in general about a national EPCRA database, as
well as any input on how such a system should be designed, developed,
and implemented. EPA seeks quantitative information characterizing how
a centralized reporting clearinghouse could reduce burden to
stakeholders. The Agency also solicits information on conducting a
pilot of a national database with a small number of states and local
implementing agencies.
#25--National Database--Managing Right-to-Know Data: EPA requests
comment and information from LEPCs, TEPCs, SERCs, and TERCs on whether
a national EPCRA database would be beneficial to receive and manage
reports and, pursuant to the right-to-know requirements, make those
reports available to the public.
#26--National Database--Managing Reports from Facilities: EPA seeks
input on both the potential benefits and any disadvantages for LEPCs,
TEPCs, SERCs, and TERCs of creating a national database for receiving
and managing EPCRA sections 302, 304, 311, and 312 reports.
#27--National Database--Animal Waste Air Emissions Reporting: EPA
seeks input on the potential efficiencies or inefficiencies to the
regulated community of submitting EPCRA animal waste air emissions
reports to one centralized portal. EPA also seeks input on both the
potential benefits and disadvantages to the communities near animal
farming operations and the general public of a national database to
receive and manage reports and, pursuant to right-to-know requirements,
make reports available to the public.
#28--National Database--Facility Benefits and Disadvantages: EPA
seeks input on potential benefits and disadvantages for the regulated
community of a national database for complying with EPCRA sections 302,
304, 311, and 312 reporting requirements.
#29--National Database--Managing FOIA Requests: EPA seeks input
from
[[Page 80232]]
LEPCs, TEPCs, SERCs, and TERCs about EPA managing Freedom of
Information Act (FOIA) requests and releasing EPCRA data from a
national system. The Freedom of Information Act generally provides the
public with access to federal agency records, however FOIA does not
apply to state and local agencies. Each state has their own laws and
procedures for releasing records to the public. The EPA is soliciting
comment and information on what issues may need to be addressed if EPA
were to manage FOIA requests on what would be considered state and
local data under EPCRA.
#30--National Database--Other: The Agency is soliciting information
and comment on any other issues related to a national EPCRA database.
C. Costs and Benefits
1. Estimated Regulated Universe
EPA estimates the total number of farms with livestock to be
approximately 1.25 million based on data from the United States
Department of Agriculture's (USDA) 2017 Census of Agriculture. However,
only a fraction of these farms is expected to exceed the reportable
quantity for either ammonia and/or hydrogen sulfide, and thus be
regulated under a potential future rule that would reinstate reporting.
The Agency used data from NAEMS and literature reviews to estimate
contribution factors (i.e., estimate of quantity of air emissions per
animal per day), which were applied to the livestock numbers from the
USDA Census, to generate an estimate of 37,891 farms that would be
expected to exceed the reportable quantity. All of the estimates,
calculations and assumptions are in the TBD in the docket.
The reporting burden is expected to be relatively minimal because
the Agency anticipates that continuous release reporting would be used
in a majority of instances (see Section D.2 for burden estimates). Even
though the reporting burden is expected to be low and only encompass
approximately 38,000 farms, other farms may not know whether their
operations will exceed the reportable quantity. The following section
(Section D.2) solicits comment on estimating the burden to all 1.25
million farms with livestock.
Request for Information
EPA requests the following information relating to estimating the
regulated universe:
#31--Regulated Universe--Number of Farms Reporting: The Agency is
soliciting information and comments on the estimate of farms expected
to exceed the reportable quantity. The Agency is specifically
soliciting information and comment on the methods for estimating the
number of regulated farms, the data sources used, and the estimated
contribution factors, which are all detailed in the TBD. Regarding the
contribution factors, the Agency realizes that the contribution factors
EPA used, for estimating the regulated universe, may not take into
account all the variables that impact any given farm's animal waste air
emissions, and is soliciting information and comment on the accuracy of
the contribution factors used to estimate the regulated universe; any
additional information that may provide a more accurate estimate of the
regulated universe; and the utility of refining the contribution
factors or the method used.
2. Burden Estimates
In analyzing whether to pursue a rulemaking to rescind the
reporting exemption, EPA considered the costs associated with
reinstating reporting requirements. EPA estimated the total costs by
combining unit costs of compliance per farm with the estimate of the
affected farm universe. The Agency used animal inventory data from
USDA's 2017 Census of Agriculture in the affected NAICS codes to
identify the regulated universe of 37,891 farms. Farm operations with
continuous air releases of ammonia or hydrogen sulfide from animal
waste that meet or exceed the RQ would qualify for reduced reporting
requirements, including:
Providing initial continuous release telephone
notification to the SERC (or TERC) and LEPC (or TEPC);
Submitting initial written report to the appropriate SERC
(or TERC) and LEPC (or TEPC);
Providing notification of a statistically significant
increase (SSI) in a release to the SERC (or TERC) and LEPC (or TEPC);
and,
Providing notification of a new release resulting from a
change in source or composition.
EPA estimated the annualized cost of a potential future rule over a
10-year analysis period. The total annualized cost of reinstating EPCRA
reporting would be approximately $2.9 or $2.8 million using three and
seven percent discount rates, respectively, as detailed in the TBD.
Table 2 summarizes the total undiscounted cost of a future rule, by
year. For reporting farms, first-year costs are $16.8 million, and
total first-year costs for SERCs (or TERCs) and LEPCs (or TEPCs) is
$6.5 million. Costs in years 2 through 10 of the analysis are
significantly less, at approximately $0.1 million per year for both
sets of affected entities.
Table 2--Total Cost by Year (Undiscounted) (2022$)
----------------------------------------------------------------------------------------------------------------
Animal operations State, local, tribal gov't
Compliance requirement ---------------------------------------------------------------
First year Years 2-10 First year Years 2-10
----------------------------------------------------------------------------------------------------------------
Rule Familiarization and Applicability $3,710,295 $0 $0 $0
Determination..................................
CRRR Reporting:
Labor Costs................................. 11,782,802 164,451 6,481,555 108,026
Initial Notification.................... 1,073,190 0 2,160,518 0
Initial Written Report.................. 10,709,612 0 4,321,037 0
Reporting an SSI........................ 0 164,451 0 108,026
O&M Costs................................... 1,307,223 0 0 0
Initial Notification.................... 0 0 0 0
Initial Written Report.................. 1,307,223 0 0 0
Reporting an SSI or New Release......... 0 0 0 0
---------------------------------------------------------------
Total Cost.......................... 16,800,321 164,451 6,481,555 108,026
----------------------------------------------------------------------------------------------------------------
[[Page 80233]]
The Agency has also prepared a screening analysis to assess small
entity impacts, documented in the TBD. The Agency used sales data from
the USDA's 2017 Census of Agriculture in the affected NAICS codes,
along with Small Business Administration (SBA)-specified small business
thresholds, to identify the potential set of affected small operations.
EPA combined these data with the affected universe data to estimate the
subset of reporting farms that meet SBA size standards for small
entities. EPA estimates that 31,921 out of the 37,891 farms in the
regulated universe (84 percent) are small operations under SBA size
standards. EPA performed a cost-to-sales test for these entities and
found that none of the affected operations would experience costs
greater than one percent of annual sales. Based on the results of the
cost-to-sales test, EPA concludes that a future rulemaking would not
have a significant economic impact on a substantial number of small
entities.
Request for Information
EPA requests the following information relating to the costs of a
potential future rule:
#32--Burden--Reporting Farms: The Agency is soliciting information
and comments on the cost estimates for farms and state and local
agencies. See the TBD for a detailed analysis. The Agency made
assumptions for hours for specific tasks; labor rates; how many SSIs
would be submitted; how many new farms would report in the out years;
and other variables. EPA is requesting information and comment on these
assumptions and variables that could result in more accurate burden
estimates.
#33--Burden--Non-Reporting Farms: The Agency is soliciting
information and comments on the cost estimates for all farms to
understand and potentially estimate their air emissions. The Agency
estimates that all 1.25 million farms with livestock (both reporting
and non-reporting farms) would incur between 1 and 2.5 hours of burden
per farm for rule familiarization, which totals to $97.6 million burden
for all farms. See section 3.2 in the TBD for a detailed analysis.
#34--Burden--Small Farms: The Agency is soliciting information and
comments on the analysis of impacts to small farms. See the TBD for a
detailed analysis.
#35--Burden--Qualitative Costs: The Agency is soliciting
information and comments on any qualitative costs of a reinstating
reporting. In the TBD, the Agency attempted to quantify as many costs
of a potential future rule as it was able to.
3. Environmental Justice and Community Right-To-Know
Any rulemaking resulting from this ANPRM would impact only the
reporting requirements for animal waste air emissions; a new rule would
not directly lessen air emissions from animal waste on farms, nor
directly change disproportionate and adverse effects experienced by
communities with environmental justice concerns. However, one of the
benefits of requiring reporting is the availability and accessibility
of this information to surrounding communities. This reporting is
critical to advancing the Agency's environmental justice goals by
increasing the understanding of potential impacts of air emissions from
animal waste on communities with environmental justice concerns. As a
result, fenceline communities may benefit from the reporting of animal
waste air emissions at farms.
Although a potential future rule would not directly address human
health or environmental conditions, the EPA investigated potential
environmental justice concerns by conducting geospatial analyses. To
conduct a thorough, national-level environmental screening analysis,
publicly available data of source locations of air emissions are
required. These data do not exist at the national level. While the 2017
USDA Census is a complete count of U.S. farms and ranches and the
individuals who operate them, publicly available data are aggregated to
the county level to protect the confidentiality of the information
provided by individual respondents. The EPA conducted three levels of
analysis to identify communities that may be affected by the reporting
rule based on the level of animal operations' ammonia emissions for 5
animal sectors (Beef, Broilers, Dairy, Layers, and Swine) at the
county-level, tribal-level, and available state-level data.
As shown with the 2017 USDA Census data in the environmental
justice analysis provided in TBD, that while the upper quintile of
counties emitting ammonia from animal waste on average does not exceed
the national average for minority populations or low-income
populations, four of the top ten counties in ammonia emissions from
animal waste comprise populations exceeding the national average for
minority populations and low-income populations. The EPA believes that
in some localities, minority and low-income populations may be
disproportionately impacted by air emissions from animal wastes, which
is shown in the TBD at the county level and census block level using
the USDA Census data and the state-specific farm data.
Request for Information
EPA requests the following information relating to the benefits of
a potential future rule:
#36--Benefits--Environmental Justice: The Agency is soliciting
information and comments on the environmental justice analysis. See the
TBD for details.
#37--Indirect Benefits: The Agency is soliciting information and
comments on the indirect benefits of a potential future rule to
reinstate EPCRA reporting by farms. A future rule would only be a
reporting rule to provide state, tribal and local implementing agencies
and communities information on releases of ammonia and hydrogen sulfide
from animal wastes on farms. However, after air emission information is
shared with states, locals, and communities, there are potential
indirect benefits, such as communities experiencing greater capacity
for meaningful involvement in the development and implementation of
local pollution management policies or the information leading to
voluntary initiatives by farms to review farming and waste management
practices and set goals for reductions in emissions, and institute
``good neighbor'' policies. Potential changes in farm operations--
including reductions in the releases and changes in the waste
management practices--could yield health and environmental benefits.
Indirect benefits of a potential future rule have not been quantified.
D. Small Farms
Based on the existing EPCRA RQs of 100 pounds per day for both
ammonia and hydrogen sulfide, EPA estimates the regulated universe of
the proposed rule to be 37,891 farms. The regulated universe is 3
percent of approximately 1.25 million farms nationwide in the 2017 USDA
Agriculture census. Of the 37,891 reporting farms, 31,921 farms are
estimated to be small businesses as defined by the Small Business
Administration (SBA), see the TBD in the docket. Separately, using the
National Pollution Discharge Elimination System (NPDES) farm size CAFO
categories, only approximately 3,000 of the 37,891 farms would be
considered small CAFOs and limited to swine and dairy operations, also
see the TBD in the docket. Even though there are relatively few ``small
farms'' that would be required to report releases from animal waste,
EPA recognizes that
[[Page 80234]]
most farms would not know whether they exceed the reporting threshold
(i.e., be in the regulated universe). This section is designed to
gather information relating to a reporting exemption for small farms,
which could create regulatory certainty for farmers.
1. Potential Reporting Exemption for ``Small Farms''
If the Agency reinstates reporting for farms, EPA seeks information
on whether ``small farms,'' which would need to be defined in a
potential future rule, should be exempted from reporting animal waste
air emissions.
EPA considered relevant comments received during the previous 2008
\11\ and 2019 \12\ rulemakings, as discussed in the response to comment
documents in those dockets. For both the 2008 and the 2019 rules,
commenters acknowledged that ``small farms,'' as described but not
defined by the commenters, would not be expected to report because they
are likely to fall below the RQ-based reporting threshold. In 2008,
commenters stated that they did not think ``small farms'' would reach
the established 100-pound RQs even without a reporting exemption. One
commenter stated that EPA should establish an exemption for farms under
an income level threshold which was not specified but would
differentiate between ``true'' family farms and larger industrial-type
operations. The 2019 rule received a comment from an environmental
group that smaller animal feeding operations are unlikely to be subject
to EPCRA reporting.
---------------------------------------------------------------------------
\11\ https://www.regulations.gov/document/EPA-HQ-SFUND-2007-0469-1359.
\12\ https://www.regulations.gov/document/EPA-HQ-OLEM-2018-0318-0405.
---------------------------------------------------------------------------
Request for Information
EPA requests the following information:
#38--Small Farm Exemption--General: EPA requests comment on whether
``small farms'' should be exempted from reporting animal waste air
emissions. If so, how should they be exempted? EPA requests any
information that the Agency can use to develop a justification to
exempt ``small farms'' from reporting air emissions under EPCRA.
Similarly, the Agency is requesting any information that supports not
exempting ``small farms.''
#39--Small Farm Exemption--Criteria: EPA requests comment on the
criteria that should be considered in establishing a potential
exemption for small farms. For example, should an exemption be based on
animal number thresholds at the operation; animal waste management
methods; single species-focused operations; or other criteria? The
Agency requests information that could be used to differentiate small
farms from medium and large operations that would support exempting
small farms from EPCRA reporting.
2. Defining ``Small Farms''
Any potential action for small farms requires defining ``small
farm.'' The term ``farm'' is already defined in 40 CFR 355.61. If the
Agency pursues reinstatement of EPCRA reporting, and further pursues an
exemption from that reporting for small farms, the Agency would not be
seeking to change the definition of ``farm,'' but rather to expand on
the existing definition to categorize ``small farms.''
In the 2008 rule exempting farms from reporting animal waste air
emissions (73 FR 76948), EPA defined different sizes of farms using the
NPDES size definitions for CAFOs, due to familiarity with these size
categorization terms within the agriculture industry.\13\ The NPDES
farm size categories of small, medium, and large are based on animal
threshold numbers for each species. For example, mature dairy cattle
have species-specific threshold ranges as follows: less than 200
defined as a small CAFO, 200 to 699 defined as a medium CAFO, and 700
or above defined as a large CAFO.
---------------------------------------------------------------------------
\13\ A table of EPA's NPDES regulatory definitions of large,
medium, and small CAFOs can be viewed here: https://www3.epa.gov/npdes/pubs/sector_table.pdf.
---------------------------------------------------------------------------
EPA seeks input on whether using the NPDES CAFO farm size
categories for defining small farms is the best choice, and if not, EPA
is seeking input on an alternative definition for ``small farm.'' EPA
is aware of and has considered other ways to define ``small farms.''
For example, an alternate definition for small farm could come from the
Economic Research Service at USDA,\14\ which classifies sizes based on
revenue. The USDA defines small farms to have annual gross cash farm
income (GCFI) of less than $350,000. If revenue is used to define
``small farms'', the farms would make the determination as to whether
they were subject to the exemption, unless they voluntarily provide the
applicable information. Any revenue-based definition would make it
challenging for EPA, or other agencies, to conduct reporting compliance
and independently determine whether a farm meets the exemption
threshold. For example, EPA, or other another agency, would have to
determine if revenue information is available, and whether the source
of revenue (e.g., from the livestock at the farm or from another source
such as crop production) is significant in defining farm size for EPCRA
reporting purposes.
---------------------------------------------------------------------------
\14\ USDA. 2022. Economic Research Service. Farm Structure and
Contracting. Available at: https://www.ers.usda.gov/topics/farm-economy/farm-structure-and-organization/farm-structure-and-contracting/.
---------------------------------------------------------------------------
No direct comments were received to assist the Agency in defining
``small farms'' in the 2008 nor 2019 rulemakings.
Request for Information
EPA requests the following information:
#40--Small Farm Definition: The Agency is soliciting comment and
information on how to define ``small farm'' in the context of creating
a potential reporting exemption. Specifically, EPA is soliciting input
on applying the definition of small farms from NPDES or USDA to EPCRA
reporting. Are there other small farm definitions that may be more
appropriate for EPCRA reporting? Are there certain attributes from
``small farms'' that correlate with quantity of air emissions (e.g., is
there a certain level of farm revenue that correlates to farms with
smaller manure management operations)?
3. Animal Waste Management Methods for ``Small Farms''
EPA seeks information on animal waste management methods that could
be used to differentiate farm size and how such methods would affect
air emissions of ammonia and hydrogen sulfide.
In examining this issue, the Agency reviewed comments received on
the 2008 and 2019 rules, though no comments explicitly addressed how to
differentiate farms by size.
Request for Information
EPA requests the following information:
#41--Small Farm--Waste Handling: EPA is soliciting information and
comment on certain waste management practices that could be used to
support an exemption for small farms, if EPCRA reporting is reinstated.
Specifically, the Agency seeks information on various animal waste
handling methods based on size of operation (number of animals) and
species of animals that would be different at small farms versus medium
and large farms and may affect air emissions of ammonia and hydrogen
sulfide.
[[Page 80235]]
4. Health Impacts From ``Small Farms''
Section IV.A in this document outlines the health impacts from
animal waste air emissions, which are further detailed in the TBD. This
section is intended to solicit comment and information regarding any
distinction that could be made between adverse health impacts from air
emissions from small farms versus medium and large farms.
Request for Information
EPA requests the following information:
#42--Small Farm--Health Impacts: The Agency is soliciting
information on health impacts from different size farms to determine if
lack of adverse health impacts would support a reporting exemption for
small farms, if EPCRA reporting is reinstated through a potential
future rule. Conversely, the Agency is also soliciting information that
demonstrates adverse health impacts from animal waste air emissions
from ``small farms.'' When submitting information, the Agency requests
the commenters to provide any information on how the requester or
information is defining ``small farm.''
5. State, Tribal, and Local Emergency Planners and Responders Use of
``Small Farm'' Animal Waste Air Emissions Information
Reinstating animal waste air emissions reporting requirements would
require owners or operators of covered farms to provide initial
notification to either the SERC or TERC, and the LEPC or TEPC in the
event of a release of an EPCRA EHS, as required by EPCRA section 304,
or of a CERCLA hazardous substance in an amount equal to or greater
than the RQ for that substance within a 24-hour period. Within 30 days
of the initial notification, farms must submit a written follow-up
report to these agencies. EPA recognizes that reinstating EPCRA animal
waste air emissions reporting will increase the number of notifications
(ex: telephone, email, etc.) and written release reports submitted to
SERCs or TERCs and LEPCs or TEPCs. These agencies will have the
responsibility of receiving initial notifications and managing the
reports as well as making the information publicly available as part of
the EPCRA right-to-know provisions.
Previous comments submitted to EPA on the 2008 rulemaking include
comments from LEPCs stating their support for a reporting exemption
because there would likely be no federal, state or local emergency
response to such release reports.\15\ EPA also received comments from
the National Association of SARA Title III Program Officials (NASTTPO),
an EPCRA-related association for state, tribal, and local EPCRA
implementing agencies, supporting the 2019 EPCRA reporting exemption
(84 FR 27533).\16\ NASTTPO stated that these reports are of no
particular value to LEPCs and first responders and instead are
generally ignored because they do not relate to any specific event. The
NASTTPO noted that open dialogue and coordination between local
emergency authorities and animal farming operations can be more
effective than EPCRA-required release reporting for farms that do not
handle quantities of chemicals designated under EPCRA as EHSs.\17\
While some state and local agencies have stated they support not
receiving release reports of animal waste air emissions from farms, the
EPA believes there may be value in providing these reports for
fenceline communities.
---------------------------------------------------------------------------
\15\ See comments submitted with docket IDs: EPA-HQ-SFUND-2007-
0469-0498; EPA-HQ-SFUND-2007-0469-0215.
\16\ See comment submitted with docket ID: EPA-HQ-OLEM-2018-
0318-0238.
\17\ See NASTTPO letter as part of comment submitted with docket
ID: EPA-HQ-OLEM-2018-0318-0236.
---------------------------------------------------------------------------
Request for Information
EPA requests information from SERCs, TERCs, LEPCs, and TEPCs on the
usefulness of information pertaining to ``small farm'' animal waste air
emissions for the purposes of emergency planning and response.
#43--State, Local, and Tribal Impacts: Through prior public comment
periods from previous rulemakings, as well as the ongoing coordination
between EPA and SERCs, TERCs, and LEPCs, the Agency has heard that
state, tribal, and local emergency planners and responders would not
use EPCRA release reports of animal waste air emissions from farms, and
so, the Agency is inferring that if EPCRA reporting is reinstated, an
exemption for small farms would be well received by state, tribal, and
local emergency planners and responders. The Agency is requesting any
new comments and information that would support or contradict this
position. Regarding small farms, if EPCRA reporting is reinstated
without a small farm exemption, EPA is requesting comment on whether
state, tribal, and local implementing agencies would process and
utilize release reports for animal waste air emissions from small farms
differently from reports from larger farms.
6. Adjusting the RQs of Ammonia and Hydrogen Sulfide for Animal Waste
Air Emissions
One way EPA could potentially reduce reporting of air emissions
from animal waste for small farms is by adjusting the RQs or creating
industry and media-specific RQs. The existing RQs for ammonia and
hydrogen sulfide are both set at 100 pounds. Any release of either of
these substances at or above the RQ in a 24-hour period would require
reporting under EPCRA.
Establishing Category-Specific Animal Waste Air Emissions RQs
CERCLA section 103 requires immediate notification to the National
Response Center whenever an RQ or more of a CERCLA hazardous substance
is released in a 24-hour period. Similarly, EPCRA section 304 requires
notification to the SERC or TERC and the LEPC or TEPC when there is a
release of an RQ or more of either a CERCLA hazardous substance or an
EPCRA EHS in any 24-hour period. For substances listed under both
CERCLA (40 CFR 302.4) and EPCRA (40 CFR part 355, Appendices A and B),
the applicable RQ is established under CERCLA and adopted under EPCRA
(April 22, 1987, 52 FR 13378). For EHSs not listed under CERCLA, EPA
used the EPCRA threshold planning quantities (TPQs) to assign RQs, by
raising the statutory RQ (one lb) to be the same as their TPQs.
EPA adopted a five-level system for RQs of 1, 10, 100, 1,000, and
5,000 pounds for CERCLA reporting. These levels were originally
established pursuant to CWA section 311 (40 CFR part 117). EPA has
authority to establish and adjust RQs for hazardous substances under
CERCLA and for EPCRA EHSs.
EPCRA additionally requires EPA to consider and establish TPQs for
EHSs, which is the quantity of the substance present at a facility for
which emergency planning notification is required under EPCRA section
302. Currently, the TPQ for ammonia and hydrogen sulfide is 500 lb for
all industry sectors. The TPQ methodology is separate from the RQ
methodology and was developed specifically to reflect a quantity that
could cause serious health consequences if accidentally released.
Generally, the TPQ for a substance should be higher than the RQ, which
is the case for most EHSs. For other EHSs, the TPQ is the same quantity
as the RQ, which is dependent on the criteria and the ranking factor
established for TPQ and RQ. In a future rulemaking, if EPA were
[[Page 80236]]
to raise the RQs for hydrogen sulfide and ammonia from animal waste air
emissions at farms above the existing 500-pound TPQ (i.e., to either
1,000 or 5,000 lb), the Agency may need to address the TPQs for ammonia
and hydrogen sulfide emitted from animal waste from farms, since those
situations may not be appropriate for emergency planning purposes.
Based on publicly available information, EPA developed preliminary
estimates of the reporting universe and the numbers of small farms
under several possible RQs. Under the existing RQ of 100 pounds,
approximately 37,891 of the 1.25 million farms, based on USDA's 2017
Census of Agriculture, would be required to report releases of air
emissions from animal waste, which comprises approximately 3% of farms.
Using the NPDES CAFO size categories, this estimate of 37,891 farms
includes approximately 3,000 small farms. If the RQ for both ammonia
and hydrogen were raised to 500 pounds, the preliminary estimated
regulated universe would decrease from 37,891 to approximately 15,000
farms; at 1,000 pounds RQ, the estimated regulated universe would
decrease even further to approximately 5,000 reporting farms.
Additionally, at an RQ of 1,000 pounds, EPA estimates that no small
farms, under the NPDES definition, would exceed the reportable
quantity. See the TBD for the analysis of number of regulated farms at
different RQs.
Request for Information
EPA requests the following information relating to adjusting the
RQs of ammonia and hydrogen sulfide for animal waste air emissions:
#44--RQ Adjustment--General: EPA requests comments and supporting
information, if available, on the potential of adjusting the RQs for
ammonia and hydrogen sulfide to reduce the reporting burden for small
farms, based on the existing RQ methodology.
#45--Industry-Specific RQ Adjustment: The Agency is soliciting
comment and information on creating industry and/or media-specific
animal waste air emissions RQs for farms only, where all non-farming
industries would retain the existing 100-pound RQs for ammonia and
hydrogen sulfide, but animal waste at farming operations would have
separate, higher RQs for ammonia and hydrogen sulfide. Additionally,
the Agency is requesting comment and information on what the ``farm-
specific'' RQs should be. The Agency is seeking information that
supports or refutes the concept of separate RQs for the same hazardous
substance.
E. National Report on Animal Waste Emissions
The issue of whether farms should report under EPCRA has been
through various rulemakings and litigation since 2008. The decision
seems to be binary (i.e., farms report or they do not). The Agency is
including this section of the ANPRM to solicit comment and information
on potential creative solutions to provide information to fenceline
communities on air emissions from animal wastes without requiring farms
with having to estimate and report to their state, tribal and local
agencies.
Request for Information
EPA requests the following information on finding a creative
solution to reporting animal waste air emissions:
#46--National Report based on USDA or State Data: EPA contemplated
developing a national report using USDA Census data to gather locations
of farms and applying the contribution factors developed under NAEMS.
However, the USDA Census dataset only supplies farm locations at the
county-level, and there are additional restrictions on sharing farm
data when an individual farm can be identified. The EPA conducted the
county-level analysis with the USDA data, which can be found in the
TBD. However, EPA does not believe that county-level data will be
granular enough for fenceline communities to understand the amounts and
impacts of animal waste air releases. The EPA also evaluated all the
state datasets we found that included farm locations (see the TBD).
However, the handful of state datasets are well short of building a
national report on animal waste air emissions. The Agency is soliciting
comment and information on our assessment of using USDA Census data and
datasets from state agencies. We are also soliciting comment and
information on any other datasets that may be used to develop a
national report of air emissions. Finally, the Agency is soliciting
comment on whether this type of national report would/should be a
compromise for this long-standing issue.
#47--Other Technology for Estimating Air Releases: The Agency is
soliciting comment and information on newer technologies that could be
applied to understanding animal waste air emissions and then
distributing that information to fenceline communities. For example,
are there existing technologies, such as satellite-based instruments,
to measure ammonia and/or hydrogen sulfide that can be applied at a
granular enough level to show quantities released from individual
farms?
#48--Other Solutions: The Agency is soliciting comment and
information on other possible solutions to providing animal waste air
emissions to fenceline communities without requiring farms with
reporting.
V. Request for Comment and Additional Information
EPA is seeking comment on all questions and topics described in
this ANPRM. In addition, EPA encourages all interested persons to
identify and submit comments on other issues relevant to EPA's
consideration of the potential development of future regulations
pertaining to animal waste air emission reporting under EPCRA. EPA
requests that commenters making specific recommendations include
supporting documentation, where appropriate.
Instructions for providing written comments are provided under
ADDRESSES, including how to submit any comments that contain CBI or
PBI.
VI. What are the Next Steps EPA will take?
EPA intends to carefully review all comments and information
received in response to this ANPRM. Once that review is completed, EPA
will determine whether to pursue a proposed rule to reinstate air
emission reporting from animal waste at farms under EPCRA.
VII. Statutory and Executive Order Reviews
Under Executive Order 12866, entitled Regulatory Planning and
Review as amended by Executive Order 14094: Modernizing Regulatory
Review, EPA submitted this action to the Office of Management and
Budget (OMB). Any changes made in response to recommendations received
as part of Executive Order 12866 review have been documented in the
docket for this action. Because this action does not propose or impose
any requirements, other statutory and executive order reviews that
apply to rulemaking do not apply. Should EPA subsequently determine to
pursue a rulemaking, EPA will address the statutes and executive orders
as applicable to that rulemaking.
Nevertheless, the Agency welcomes comments and/or information that
would help the Agency to assess any of the following: the potential
impact of a rule on small entities pursuant to the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601 et seq.); potential impacts on
[[Page 80237]]
state, local, or tribal governments pursuant to the Unfunded Mandates
Reform Act (UMRA) (2 U.S.C. 1531-1538); federalism implications
pursuant to Executive Order 13132, entitled Federalism (64 FR 43255,
November 2, 1999); availability of voluntary consensus standards
pursuant to section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (NTTAA), Public Law 104-113; tribal
implications pursuant to Executive Order 13175, entitled Consultation
and Coordination with Indian Tribal Governments (65 FR 67249, November
6, 2000); environmental health or safety effects on children pursuant
to Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997); energy effects pursuant to Executive Order 13211, entitled
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (66 FR 28355, May 22, 2001); paperwork burdens
pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C. 3501); or
human health or environmental effects on minority or low-income
populations pursuant to Executive Order 12898, entitled Federal Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994) and Executive Order 14096,
entitled Revitalizing Our Nation's Commitment to Environmental Justice
for All (88 FR 25251, April 21, 2023). The Agency will consider such
comments during the development of any subsequent rulemaking.
Additional information about statutes and executive orders can be
found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
List of Subjects in 40 CFR Part 355
Environmental protection, Air pollution control, Chemicals,
Disaster assistance, Hazardous substances, Hazardous waste, Natural
resources, Penalties, Reporting and recordkeeping requirements,
Superfund.
Michael S. Regan,
Administrator, Environmental Protection Agency.
[FR Doc. 2023-25270 Filed 11-16-23; 8:45 am]
BILLING CODE 6560-50-P
