CERCLA and EPCRA Reporting Requirements for Air Releases of Hazardous Substances from Animal Waste at Farms
Overview
Two environmental laws, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA), require reporting of releases of hazardous substances that meet or exceed reportable quantities within a 24-hour period. The purpose of the notification is for federal, state, Tribal, and local officials to evaluate the need for an emergency response to mitigate the effects of a release to the community.
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Amendments and Requirements
Final EPCRA Amendment
On June 4, 2019, EPA signed a final rule to amend the emergency release notification regulations under EPCRA. This amendment added a reporting exemption for air emissions from animal waste at farms. On February 14, 2022, the D.C. District Court granted EPA’s motion to remand the final rule without vacatur. The court decision kept the EPCRA reporting exemption in place for all farms while EPA considers next steps.
FARM Act and Legislative Amendments to CERCLA
On March 23, 2018, the Consolidated Appropriations Act (Omnibus Bill) was signed into law. Title XI of Division S of the Omnibus Bill, known as the Fair Agricultural Reporting Method Act (FARM Act), amended CERCLA section 103(e) to exempt air emissions from animal waste at a farm from reporting under CERCLA.
CERCLA Reporting Requirements
Due to the FARM Act’s legislative amendments to CERCLA, “air emissions from animal waste at a farm” are exempt from reporting under CERCLA. Accordingly, on August 1, 2018, EPA published a final rule revising the CERCLA reporting regulations to incorporate the FARM Act’s amendments to CERCLA.
This final rule is available at: Vacatur Response – CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substance from Animal Waste at Farms; FARM Act Amendments to CERCLA Release Notification Requirements (83 FR 37444)
Reporting Requirements Frequent Questions
CERCLA Requirements
Do I need to submit a CERCLA report for air emissions from animal waste?
No. The FARM Act amended CERCLA section 103(e) to exempt air emissions from animal waste (including decomposing animal waste) at a farm from CERCLA reporting. Other releases of hazardous substances that meet or exceed reportable quantities still require reporting under CERCLA. For more information, please see:
- CERCLA Reporting Requirements - 40 CFR 302.4 and 40 CFR 302.6
- When Are You Required to Report an Oil Spill or Hazardous Substance Release
If a farmer made an initial notification to the National Response Center before the FARM Act was passed, do they need to submit a written report to the EPA regional office?
No. Additional reporting is not required for air emissions from animal waste.
EPCRA Reporting Requirements
Do I need to submit an EPCRA report for animal waste air emissions?
No. On June 4, 2019, EPA signed a final rule to add a reporting exemption for air emissions from animal waste at farms.
Is EPA reconsidering the EPCRA reporting exemption for animal waste air emissions?
EPA is considering whether to propose reinstating the reporting requirements for animal waste air emissions at farms under EPCRA. To support this reconsideration, the agency solicited information from the public through an Advance Notice of Proposed Rulemaking. EPA sought information on how to promote compliance and accuracy in reporting, how to streamline reporting requirements, a potential small farm exemption, and user needs for a reporting instrument, including identifying when reporting would be required.
The public comment period closed on February 15, 2024.
What information did EPA solicit from the public?
The agency solicited comments under five general categories:
- Health impacts.
- Implementation challenges.
- Costs and benefits.
- Small farm definition and reporting exemption.
- National report on animal waste air emissions.
EPA was interested in comments on other potential solutions to provide air emissions information to fenceline communities that live near farms without burdening farms with estimating emissions and reporting to state, local, and tribal agencies. The agency requested information on creative solutions to reporting animal waste emissions, including developing a national report based on existing data sets or using other technology for estimating air releases. EPA also solicited comment on the benefits and challenges of potentially developing a national database for EPCRA reporting information.
Does the 2019 final rule exempt all releases from animal waste at farms?
No, the 2019 amendment does not exempt all releases from animal waste at farms. Instead, it is limited to a specific type of release (i.e., air emissions from animal waste at farms, such as ammonia and hydrogen sulfide). A release from animal waste into water (e.g., a lagoon breach) or a release from an anhydrous ammonia storage tank into the air remains subject to reporting requirements if the release exceeds the applicable reportable quantities.
How does the FARM Act affect EPCRA?
In enacting the FARM Act, Congress amended the CERCLA section 103 reporting requirements; it did not amend the EPCRA section 304 reporting requirements.
History
Regulatory Reporting Exemption for Animal Waste and Resulting Litigation
On December 18, 2008, EPA published a final rule that exempted most farms from certain release reporting requirements under CERCLA and EPCRA. Specifically, the rule exempted farms releasing hazardous substances from animal waste to the air above threshold levels from reporting under CERCLA. For EPCRA reporting, the rule exempted reporting of such releases if the farm had fewer animals than a large concentrated animal feeding operation (CAFO).
In short, all farms were relieved from reporting hazardous substance air releases from animal waste under CERCLA, and only large CAFOs were subject to EPCRA reporting.
Several groups challenged the validity of the final rule in the U.S. Court of Appeals for the D.C. Circuit. On April 11, 2017, the court vacated the final rule. On May 2, 2018, the court issued a mandate effectuating its vacatur, thereby eliminating the CERCLA and EPCRA administrative reporting exemption for farms.
Legislative Changes
On March 23, 2018, the Consolidated Appropriations Act, 2018 (Omnibus Bill), was signed into law. Title XI of Division S of the Omnibus Bill, known as the Fair Agricultural Reporting Method Act (FARM Act), exempts the reporting of air emissions from animal waste at a farm under CERCLA. On May 2, 2018, the U.S. Court of Appeals for the D.C. Circuit issued a mandate vacating the 2008 administrative reporting exemption. However, air emissions from animal waste at farms remain exempt from CERCLA reporting requirements as a result of the FARM Act.
In 2019, after passage of the FARM Act, the agency issued a final rule exempting farms from this reporting under EPCRA. In 2022, the court granted EPA’s request to remand the rule to the agency for reconsideration.