83 FR 37444 - Vacatur Response-CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal Waste at Farms; FARM Act Amendments to CERCLA Release Notification Requirements

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 148 (August 1, 2018)

The Environmental Protection Agency (EPA) is removing regulatory provisions associated with the administrative reporting exemption under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended, and under the Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986. These revisions implement the vacatur of the CERCLA and EPCRA administrative reporting exemption regulations ordered by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). This rule also incorporates CERCLA revisions enacted by the Fair Agricultural Reporting Method (FARM) Act.

[Federal Register Volume 83, Number 148 (Wednesday, August 1, 2018)]
[Rules and Regulations]
[Pages 37444-37446]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-16379]



[[Page 37444]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 302 and 355

[EPA-HQ-OLEM-2018-0518; FRL-9981-52-OLEM]
RIN 2050-AG66


Vacatur Response--CERCLA/EPCRA Administrative Reporting Exemption 
for Air Releases of Hazardous Substances From Animal Waste at Farms; 
FARM Act Amendments to CERCLA Release Notification Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is removing 
regulatory provisions associated with the administrative reporting 
exemption under the Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA) of 1980, as amended, and under the Emergency 
Planning and Community Right-to-Know Act (EPCRA) of 1986. These 
revisions implement the vacatur of the CERCLA and EPCRA administrative 
reporting exemption regulations ordered by the United States Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit). This rule 
also incorporates CERCLA revisions enacted by the Fair Agricultural 
Reporting Method (FARM) Act.

DATES: This final rule is effective on August 1, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OLEM-2018-0518. All documents in the docket are listed in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the EPA 
Docket Center, EPA/DC, WJC West Building, Room 3334, 1301 Constitution 
Ave. NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. 
to 4:30 p.m. Monday through Friday, excluding Federal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744. For 
more information on EPA's Docket Center Reading Room, see https://www.epa.gov/dockets/epa-docket-center-reading-room.

FOR FURTHER INFORMATION CONTACT: Office of Emergency Management, mail 
code 5104A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, 
Washington, DC 20460, Alison Kent (202) 564-7645, [email protected] 
or Sicy Jacob (202) 564-8019, [email protected]; or contact the EPCRA, 
RMP & Oil Information Center toll free at 1-800-424-9346 or (703) 348-
5070 in the Washington, DC area. The call center operates from 10:00 
a.m. to 5:00 p.m. EST Monday through Friday, excluding Federal 
holidays.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    A list of entities that could be affected by this final rule 
include, but are not necessarily limited to:

------------------------------------------------------------------------
                                                         Examples of
         NAICS Description            NAICS Code    potentially affected
                                                          entities
------------------------------------------------------------------------
Crop Production...................             111  Facilities that
                                                     manage crop
                                                     production.
Animal Production and Aquaculture.             112  Facilities that
                                                     manage animal
                                                     production and
                                                     aquaculture.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provide a 
guide for readers regarding the types of entities that EPA is aware 
could be involved in the activities affected by this action. However, 
other types of entities not listed in this table could be affected by 
this final rule. To determine whether your entity is affected by this 
action, you should carefully examine the applicability criteria found 
in title 40 of the Code of Federal Regulations (CFR) parts 302 and 355. 
If you have questions regarding the applicability of this action to a 
particular entity, consult the persons listed in the FOR FURTHER 
INFORMATION CONTACT section.

B. Why is EPA issuing this action?

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause to issue this final rule without prior proposal and 
opportunity for comment because these revisions undertake the 
ministerial tasks of removing CERCLA and EPCRA regulatory provisions 
vacated by the D.C. Circuit and adding provisions to the CERCLA 
regulations consistent with the FARM Act's legislative amendments to 
CERCLA section 103.
    As a matter of law, the orders issued by the D.C. Circuit on April 
11, 2017 and May 2, 2018 vacated the final rule titled ``CERCLA/EPCRA 
Administrative Reporting Exemption for Air Releases of Hazardous 
Substances From Animal Waste at Farms'' (73 FR 76948, December 18, 
2008), herein referred to as the ``2008 final rule,'' which was issued 
by EPA under CERCLA, 42 U.S.C. 9601 et seq. and EPCRA, 42 U.S.C. 11001 
et seq. It is, therefore, unnecessary to provide notice and an 
opportunity for comment on this action, which merely carries out the 
court's orders by removing the administrative reporting exemption and 
related definitions of ``farm'' and ``animal waste'' from the CERCLA 
regulations at 40 CFR part 302 and the EPCRA regulations at 40 CFR part 
355.
    Prior to the court mandate vacating the 2008 final rule, Congress 
passed the FARM Act, which was signed into law by the President on 
March 23, 2018. The FARM Act amended CERCLA section 103 (42 U.S.C. 
9603) to exempt reporting of air emissions from animal waste (including 
decomposing animal waste) at farms. This final rule revises the CERCLA 
regulations at 40 CFR part 302 to be consistent with the FARM Act's 
amendments to CERCLA section 103 by adding the reporting exemption for 
air emissions from animal waste at farms and adding definitions of 
``farm'' and ``animal waste'' from the FARM Act. EPA finds that it is 
unnecessary to provide notice and an opportunity to comment on these 
revisions because this final rule merely codifies the FARM Act's 
legislative amendments to CERCLA.
    In addition, EPA finds that it has good cause to make these 
revisions immediately effective under section 553(d) of the 
Administrative Procedure Act, 5 U.S.C. 553(d). EPA has determined that 
there is good cause for making this final rule effective immediately 
because this action merely

[[Page 37445]]

implements court orders vacating certain regulatory provisions and 
codifies statutory amendments to CERCLA. Delaying the effectiveness of 
this rulemaking would prolong the period of time between the change in 
the law (i.e., the court's mandate and the FARM Act's amendments to 
CERCLA) and the corresponding update to the regulations. Minimizing 
that time period would reduce the possibility of confusion for the 
regulated community and the public.

C. What is the Agency's authority for taking this action?

    These regulations are promulgated under the authority of section 
102(a), 103, 104, and 115 of the Comprehensive Environmental Response, 
Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et 
seq., as amended by the Superfund Amendments and Reauthorization Act 
(SARA) of 1986. The Agency also relies on section 304 of the Emergency 
Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 
11001 et seq., as authority to issue regulations governing EPCRA 
section 304 notification requirements, and EPCRA section 328 for 
general rulemaking authority. Finally, the Agency relies on the 
Consolidated Appropriations Act (Omnibus Bill), which was signed into 
law on March 23, 2018. Title XI of Division S of the Omnibus Bill, 
known as the Fair Agricultural Reporting Method (FARM) Act exempts the 
reporting of air emissions from animal waste (including decomposing 
animal waste) at a farm under CERCLA section 103(e).

II. Background of the Final Rule

A. Overview

    Section 103 of CERCLA requires the person in charge of a vessel or 
facility to immediately notify the National Response Center (NRC) when 
there is a release of a hazardous substance, as defined under CERCLA 
section 101(14), in an amount equal to or greater than the reportable 
quantity for that substance within a 24-hour period. In addition to 
these CERCLA reporting requirements, EPCRA section 304 requires owners 
or operators of certain facilities to immediately notify state and 
local authorities when there is a release of an extremely hazardous 
substance, as defined under EPCRA section 302, or of a CERCLA hazardous 
substance in an amount equal to or greater than the reportable quantity 
for that substance within a 24-hour period.

B. December 2008 Administrative Reporting Exemption for Farms

    On December 18, 2008 (73 FR 76948), EPA issued an administrative 
reporting exemption for air releases from animal waste at farms. 
Specifically, the rule exempted all farms from CERCLA's reporting 
requirements for air releases of any hazardous substance from animal 
waste. Under EPCRA, the 2008 final rule exempted reporting of such 
releases if the farm had fewer animals than a large concentrated animal 
feeding operation, as defined by the Clean Water Act. Documents related 
to this rulemaking are located at www.regulations.gov, docket number 
EPA-HQ-SFUND-2007-0469.
    The 2008 administrative reporting exemption was ultimately struck 
down, or vacated, by the U.S. Court of Appeals for the District of 
Columbia Circuit in Waterkeeper Alliance v. EPA, 853 F.3d 527 (D.C. 
Cir. 2017). In vacating the rule, the court found that the Agency could 
not rely on general rulemaking authority or a de minimis exception to 
issue an administrative reporting exemption for this category of 
releases, particularly where the Agency had failed to identify any 
statutory ambiguity as the basis for its interpretation of the 
reporting requirements. The court issued a mandate effectuating the 
vacatur on May 2, 2018.

C. 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 FARM Act, exempts the reporting of air emissions from 
animal waste at a farm under CERCLA section 103(e). See Fair 
Agricultural Reporting Method Act, Public Law 115-141, Sections 1101-
1103 (2018).

III. Vacatur and Court Mandate: Revisions to CERCLA and EPCRA 
Regulations

    Due to the D.C. Circuit's issuance of its mandate vacating the 2008 
final rule, EPA is amending the CERCLA and EPCRA regulations to remove 
any provisions added in the 2008 final rule. These regulations are 
amended by removing the administrative reporting exemption for air 
releases of a hazardous substance from animal waste at farms at 40 CFR 
302.6(e)(3) and 355.31(g) and (h). EPA is also removing the definitions 
of ``animal waste'' and ``farm'' from 40 CFR 302.3 and 355.61.

IV. FARM Act: Revisions to CERCLA Regulations

    The FARM Act amended CERCLA section 103 by providing an exemption 
from reporting air emissions from animal waste (including decomposing 
animal waste) at a farm. In this final rule, EPA is adding this 
exemption to the CERCLA release reporting regulation in 40 CFR 302.6 as 
well as the definitions of ``animal waste'' and ``farm'' to 40 CFR 
302.3. Due to the FARM Act, farms remain exempt from CERCLA release 
reporting requirements despite the D.C. Circuit's vacatur of the 2008 
final rule.

V. Effective Date

    This final rule will become effective immediately upon publication 
in this Federal Register.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is 
not a ``significant regulatory action'' and therefore was not submitted 
to the Office of Management and Budget (OMB) for review. In addition, 
this action is not considered an Executive Order 13771 (82 FR 9339, 
February 3, 2017) regulatory action, because this action is not 
significant under Executive Order 12866. This action is not subject to 
notice and comment requirements under the Administrative Procedure Act 
or any other statute, therefore, it is not subject to the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) or sections 202 and 205 of the 
Unfunded Mandates Reform Act of 1999 (Pub. L. 104-4). This action is 
not subject to the RFA. The RFA applies only to rules subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act (APA), 5 U.S.C. 553, or any other statute. This rule is not subject 
to notice and comment requirements because the Agency has invoked the 
APA ``good cause'' exemption under 5 U.S.C. 553(b). In addition, this 
action does not significantly or uniquely affect small governments. 
This action does not create new binding legal requirements that 
substantially and directly affect Tribes under Executive Order 13175 
(65 FR 67249, November 9, 2000). This action does not have significant 
Federalism implications under Executive Order 13132 (64 FR 43255, 
August 10, 1999). 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

[[Page 37446]]

responsibilities among the various levels of government. Because this 
final rule is not subject to review under Executive Order 12866, this 
final rule is not subject to Executive Order 13211, entitled Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 
13045, entitled Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, April 23, 1997). This final rule does 
not contain any information collections subject to OMB approval under 
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it 
require any special considerations under Executive Order 12898, 
entitled Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations (59 FR 7629, February 16, 1994). 
This action does not involve technical standards; thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Congressional Review Act

    This action is subject to the Congressional Review Act (CRA), and 
the EPA will submit a rule report to each House of Congress and to the 
Comptroller General of the United States. The CRA allows the issuing 
agency to make a rule effective sooner than otherwise provided by the 
CRA if the agency makes a good cause finding that notice and comment 
rulemaking procedures are impracticable, unnecessary or contrary to the 
public interest (5 U.S.C. 808(2)). The EPA has made a good cause 
finding for this rule as discussed in Section I.B of the preamble, 
including the basis for that finding. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects

40 CFR Part 302

    Environmental protection, Air pollution control, Chemicals, 
Hazardous substances, Hazardous waste, Reporting and recordkeeping 
requirements, Superfund, Water pollution control, Water supply.

40 CFR Part 355

    Environmental protection, Chemicals, Disaster assistance, Hazardous 
substances, Hazardous waste, Natural resources, Penalties, Reporting 
and recordkeeping requirements, Superfund.

    Dated: July 23, 2018.
Andrew R. Wheeler,
Acting Administrator.

    For the reasons stated in the preamble, EPA is amending 40 CFR 
parts 302 and 355 as follows:

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

0
1. The authority citation for part 302 is revised to read as follows:

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

0
2. Section 302.3 is amended by revising the definitions for ``Animal 
waste'' and ``Farm'' to read as follows:


Sec.  302.3   Definitions.

* * * * *
    Animal waste means feces, urine, or other excrement, digestive 
emission, urea, or similar substances emitted by animals (including any 
form of livestock, poultry, or fish). The term ``animal waste'' 
includes animal waste that is mixed or commingled with bedding, 
compost, feed, soil, or any other material typically found with such 
waste.
* * * * *
    Farm means a site or area (including associated structures) that--
    (1) Is used for--
    (i) The production of a crop; or
    (ii) The raising or selling of animals (including any form of 
livestock, poultry, or fish); and
    (2) Under normal conditions, produces during a farm year any 
agricultural products with a total value equal to not less than $1,000.
* * * * *

0
3. Section 302.6 is amended by revising paragraph (e)(3) to read as 
follows:


Sec.  302.6  Notification requirements.

* * * * *
    (e) * * *
    (3) Air emissions from animal waste (including decomposing animal 
waste) at a farm.

PART 355--EMERGENCY PLANNING AND NOTIFICATION

0
4. The authority citation for part 355 continues to read as follows:

    Authority: Sections 302, 303, 304, 325, 327, 328, and 329 of the 
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) 
(42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 11049).


Sec.  355.31  [Amended]

0
5. Section 355.31 is amended by removing paragraphs (g) and (h).


Sec.  355.61  [Amended]

0
6. Section 355.61 is amended by removing the definitions for ``Animal 
waste'' and ``Farm''.

[FR Doc. 2018-16379 Filed 7-31-18; 8:45 am]
 BILLING CODE 6560-50-P