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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, and local officials to evaluate the need for an emergency response to mitigate the effects of a release to the community.

Amendments and Requirements

Proposed EPCRA Amendment

On November 14, 2018, EPA published a proposed rule to amend the emergency release notification regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA). This amendment proposes to add a reporting exemption for air emissions from animal waste at farms. EPA is seeking public comment on the Agency’s interpretation that these types of releases are not subject to EPCRA reporting.

Comments must be received on or before December 14, 2018. Comments may be submitted to Docket ID No. EPA-HQ-OLEM-2018-0318, at: https://www.regulations.gov.

Proposed rule: Emergency Release Notification Regulations on Reporting Exemption for Air Emissions from Animal Waste at Farms; Emergency Planning and Community Right-to-Know Act (83 FR 56791)(7 pp, 250 K, About PDF)

See also: Letter from the National Association of SARA Title III Program Officials on CAFOs and Emergency Release Reporting

EPCRA Reporting Requirements

Based on the criteria for EPCRA section 304 release reporting, EPA maintains that air emissions from animal waste at farms do not need to be reported under EPCRA. For more information, please see: EPCRA Q&A.

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)(3 pp, 204 K, About PDF)

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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:

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.

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EPCRA Reporting Requirements

Do I need to submit an EPCRA report?

No. EPA has interpreted EPCRA section 304 to not require reporting of air emissions from animal waste at farms. Additionally, EPA interprets EPCRA to exclude farms that only use substances in “routine agricultural operations” from reporting under EPCRA section 304. For more information, please see: EPCRA Q&A.

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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 citizen 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.

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