83 FR 56791 - Emergency Release Notification Regulations on Reporting Exemption for Air Emissions From Animal Waste at Farms; Emergency Planning and Community Right-to-Know Act
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 220 (November 14, 2018)
Federal Register Volume 83, Issue 220 (November 14, 2018)
| Page Range | 56791-56797 | |
| FR Document | 2018-24821 |
[Federal Register Volume 83, Number 220 (Wednesday, November 14, 2018)] [Proposed Rules] [Pages 56791-56797] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-24821] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 355 [EPA-HQ-OLEM-2018-0318; FRL-9986-40-OLEM] RIN 2050-AH00 Emergency Release Notification Regulations on Reporting Exemption for Air Emissions From Animal Waste at Farms; Emergency Planning and Community Right-to-Know Act AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA or the Agency) is proposing to amend the release notification regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA) to add the reporting exemption for air emissions from animal waste at farms provided in section 103(e) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In addition, EPA is proposing to add definitions of ``animal waste'' and ``farm'' to the EPCRA regulations to delineate the scope of this reporting exemption. This proposed rulemaking maintains consistency between the emergency release notification requirements of EPCRA and CERCLA in accordance with the statutory text, framework and legislative history of EPCRA, and is consistent with the Agency's prior regulatory actions. DATES: Comments must be received on or before December 14, 2018. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ- OLEM-2018-0318, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) 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). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Sicy Jacob, United States Environmental Protection Agency, Office of Land and Emergency Management, 1200 Pennsylvania Ave. NW (Mail Code 5104A), Washington, DC 20460; telephone number: (202) 564-8019; email address: [email protected]. SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? A list of entities that could be affected by this final rule include, but are not necessarily limited to: ------------------------------------------------------------------------ Type of entity Examples of affected entities ------------------------------------------------------------------------ Industry............................... NAICS code 111--Crop production. NAICS code 112--Animal production. States and/or Local Governments........ NAICS code 999200--State Government, excluding schools and hospitals. NAICS code 999300--Local Government, excluding schools and hospitals. State Emergency Response Commissions, Tribal Emergency Response Commissions, Tribal Emergency Planning Committees and Local Emergency Planning Committees. ------------------------------------------------------------------------ This table is not intended to be exhaustive, but rather provide a guide for readers regarding the types of entities that EPA is aware could be involved in the activities affected by this action. However, other types of entities not listed in this table could be affected by this proposed rulemaking. To determine whether your entity is affected by this action, you should carefully examine the applicability criteria found in Sec. 355.30 of title 40 of the Code of Federal Regulations (CFR). If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section. B. What action is the Agency taking? The EPA is proposing to amend the EPCRA emergency release notification regulations to include the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e). In addition, EPA is proposing to add definitions of ``animal waste'' and ``farm'' to the EPCRA regulations to delineate the scope of this reporting exemption. C. What is the Agency's authority for taking this action? This proposed rulemaking is being issued under EPCRA, which was enacted as Title III of the Superfund Amendments and Reauthorization Act (SARA) of 1986 (Pub. L. 99-499). EPA proposes this rulemaking under the [[Page 56792]] 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). II. Background of the Proposed 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 (EHS), as defined under EPCRA section 302, or of a CERCLA hazardous substance in an amount equal to or greater than the reportable quantity for that substance within a 24-hour period. EPCRA and CERCLA are two separate but interrelated environmental laws that work together to provide emergency release notifications to Federal, state and local officials. Notice given to the NRC under CERCLA serves to inform the Federal government of a release so that Federal personnel can evaluate the need for a response in accordance with the National Oil and Hazardous Substances Contingency Plan (NCP),\1\ the Federal government's framework for responding to both oil discharges and hazardous substance releases. Relatedly, notice under EPCRA is given to the State Emergency Response Commission (SERC) for any state likely to be affected by the release and to the community emergency coordinator for the Local Emergency Planning Committee (LEPC) for any area likely to be affected by the release so that state and local authorities have information to help protect the community. --------------------------------------------------------------------------- \1\ 40 CFR part 300. --------------------------------------------------------------------------- Release reporting under EPCRA depends, in part, on whether reporting is required under CERCLA.\2\ Specifically, EPCRA section 304(a) provides for reporting under the following three release scenarios: --------------------------------------------------------------------------- \2\ In this document, emergency release notification and release reporting are used interchangeably. ---------------------------------------------------------------------------EPCRA section 304(a)(1) requires notification if a release of an EPCRA EHS occurs from a facility at which a hazardous chemical is produced, used or stored, and such release requires a notification under CERCLA section 103(a). EPCRA section 304(a)(2) requires notification if a release of an EPCRA EHS occurs from a facility at which a hazardous chemical is produced, used or stored, and such release is not subject to the notification requirements under CERCLA section 103(a), but only if the release: [cir] Is not a federally permitted release as defined in CERCLA section 101(10), [cir] Is in an amount in excess of the reportable quantity as determined by EPA, and [cir] Occurs in a manner that would require notification under CERCLA section 103(a). EPCRA section 304(a)(3) requires notification if a release of a substance not designated as an EPCRA EHS occurs from a facility at which a hazardous chemical is produced, used or stored, and such release requires a notification under CERCLA section 103(a). B. Fair Agricultural Reporting Method Act and Legislative Amendments to CERCLA On March 23, 2018, the President 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 expressly exempts reporting of air emissions from animal waste (including decomposing animal waste) at a farm from CERCLA section 103. The FARM Act also provides definitions for the terms ``animal waste'' and ``farm.'' On August 1, 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. C. Proposed Revisions to EPCRA Section 304 Release Notification Regulations Based on the criteria for EPCRA section 304 release reporting, EPA is proposing to amend the EPCRA release notification regulations in 40 CFR 355.31 to include the reporting exemption for air emissions from animal waste at farms. EPA is also proposing to add definitions of ``animal waste'' and ``farm'' to the definition section of the EPCRA regulations in 40 CFR 355.61 to delineate the scope of this reporting exemption. EPA believes these proposed changes appropriately reflect the relationship between CERCLA and EPCRA release reporting requirements and are consistent with the statutory text, framework and legislative history of EPCRA, as well as the Agency's prior regulatory actions. III. Legal Rationale for the Proposed Rule This proposed rulemaking maintains consistency between the emergency release notification requirements of EPCRA and CERCLA in accordance with the statutory text, framework and legislative history of EPCRA, and is consistent with the Agency's prior regulatory actions. Specifically, this proposed rulemaking is based on the relationship of the EPCRA section 304 reporting requirements to the CERCLA section 103 reporting requirements, as recently amended. As previously noted, EPCRA section 304 reporting depends, in part, on whether reporting is required under CERCLA section 103. EPCRA's legislative history further indicates that the EPCRA section 304 reporting requirements are designed to be consistent with the reporting requirements of CERCLA section 103. EPA has thus revised the EPCRA emergency release notification regulations from time to time, as appropriate, to maintain consistency with the CERCLA reporting requirements. Consistent with the Agency's interpretation of EPCRA section 304 and the Agency's prior regulatory actions, EPA now proposes to amend the EPCRA release notification regulations to explicitly exempt air emissions from animal waste at farms from reporting under EPCRA section 304. A. Statutory Text and Framework EPCRA section 304 provides for release reporting under three scenarios, each of which depends in some way on whether the release requires notice under CERCLA. If a release requires notice under CERCLA section 103(a), the release may be subject to reporting under EPCRA if the release meets the requirements of EPCRA section 304(a)(1) or 304(a)(3). If a release is not subject to notification under CERCLA section 103(a), the release may nonetheless be subject to reporting under EPCRA if the release meets the requirements of EPCRA section 304(a)(2). Because the FARM Act exempted air emissions from animal waste at farms from CERCLA reporting, these types of releases no longer require notice under CERCLA section 103(a) and thus do not fall within the EPCRA section 304(a)(1) or (a)(3) reporting scenarios. Instead, these releases fall within the EPCRA section 304(a)(2) reporting scenario. Pursuant to EPCRA section 304(a)(2), a release of an EPCRA EHS that is not subject to notification [[Page 56793]] under section 103(a) of CERCLA need only be reported under EPCRA if the release: Is not a federally permitted release as defined in section 101(10) of CERCLA, Is in an amount in excess of the reportable quantity as determined by EPA, and Occurs in a manner that would require notification under section 103(a) of CERCLA. A release that is not subject to CERCLA section 103(a) reporting must meet all three criteria in EPCRA section 304(a)(2) to be subject to EPCRA reporting. Here, air emissions from animal waste at farms could meet the first two criteria because such releases are generally not federally permitted and may exceed the applicable reportable quantity. Yet these types of releases do not ``occur[] in a manner'' that would require notification under CERCLA section 103(a) and thus do not meet the third criterion of EPCRA section 304(a)(2). Because air emissions from animal waste at farms do not meet all three criteria under EPCRA section 304(a)(2), and do not fall within the EPCRA section 304(a)(1) or (a)(3) reporting scenarios, these types of releases are not subject to EPCRA reporting. As such, EPA is proposing to amend EPCRA's emergency release notification regulations to clarify reporting exemptions for certain types of releases under EPCRA section 304. Air emissions from animal waste at farms no longer ``occur[] in a manner'' that would require notification under CERCLA section 103(a) because the recent amendment exempted these types of releases from CERCLA reporting. Importantly, the CERCLA reporting exemption is specifically tied to the nature or manner of these releases rather than to a specific substance. For example, the recent amendment does not exempt specific substances typically associated with animal waste (such as ammonia and hydrogen sulfide) from reporting; rather, it exempts from reporting releases of any substance from animal waste at a farm into the air. Because air emissions from animal waste do not ``occur[] in a manner'' that would require notification under CERCLA section 103(a), these types of releases do not meet the third criterion of EPCRA section 304(a)(2) and are thus not subject to EPCRA reporting. EPCRA section 304(a)(2) promotes consistency between the reporting requirements of EPCRA and CERCLA by ensuring that only releases that ``occur[ ] in a manner'' that would require CERCLA notification be reported under EPCRA. Yet, the provision also contemplates scenarios where releases not subject to reporting under CERCLA may still need to be reported under EPCRA, such as releases of substances designated as EHSs under EPCRA but not as hazardous substances under CERCLA. For example, trimethylchlorosilane (Chemical Abstract Service No. 75-77-4) is designated as an EPCRA EHS but not as a CERCLA hazardous substance. Since trimethylchlorosilane is not a CERCLA hazardous substance, its releases are not subject to notification under CERCLA section 103(a) and need only be reported under EPCRA if such releases meet the criteria of EPCRA section 304(a)(2). A trimethylchlorosilane release that (1) is not a federally permitted release as defined in CERCLA section 101(10); (2) exceeds the applicable reportable quantity; and (3) ``occurs in a manner'' that would require notification under CERCLA section 103(a) would still be subject to EPCRA reporting. In this example, a release of trimethylchlorosilane ``occurs in a manner'' that would require notification under CERCLA section 103(a) where, for example, the release is ``into the environment'' as defined in CERCLA section 101(22), and is not one of the excluded or exempted types of releases described in CERCLA sections 101(22), 103(e), or 103(f). (See section C of this preamble, for further explanation of these exemptions.) Therefore, the release of trimethylchlorosilane would be similar to other releases that require notification under CERCLA section 103(a).\3\ --------------------------------------------------------------------------- \3\ See, e.g., 48 FR 23552, 23555 (May 25, 1983) (describing the nature of releases subject to CERCLA notification requirements); 52 FR 13378, 13383 (April 22, 1987) (explaining that the method used to determine whether a release meets or exceeds the applicable RQ under CERCLA ``should be equally applicable to releases under [EPCRA] section 304 due to similarity to section 103 of CERCLA''). --------------------------------------------------------------------------- As another example, petroleum (including crude oil or any fraction thereof) is expressly excluded from the definition of ``hazardous substance'' in CERCLA section 101(14). Because of this ``petroleum exclusion,'' releases of petroleum are not subject to notification under CERCLA section 103(a) and so need to be reported under EPCRA only if such releases meet the criteria of EPCRA section 304(a)(2). Where a petroleum release meets the first two criteria of EPCRA section 304(a)(2), the question becomes whether the release ``occurs in a manner'' that would require notification under CERCLA section 103(a). Notably, unlike air emissions from animal waste at farms, Congress did not exempt petroleum releases from CERCLA reporting based on the manner or nature of these releases. Instead, Congress exempted these types of releases from CERCLA reporting by excluding petroleum (including crude oil or any fraction thereof) from the definition of ``hazardous substance.'' See 42 U.S.C. 9601(14). As such, these types of releases still ``occur[ ] in a manner'' that would require notification under CERCLA section 103(a) and could thus be subject to reporting under EPCRA section 304(a)(2) where the petroleum release contains an EHS. See 52 FR 13378, 13385 (April 22, 1987). In sum, where a CERCLA reporting exemption or the reason a release is not subject to CERCLA reporting is unrelated to the manner in which such releases occur, EPCRA section 304(a)(2) may compel reporting of such releases. In addition to the statutory text of EPCRA section 304(a)(2), the statutory framework of EPCRA's reporting requirements indicates a desire to maintain consistency between the EPCRA and CERCLA reporting requirements. Indeed, ``[i]n drafting the EPCRA reporting requirements, Congress expressly tied them to CERCLA's'' such that ``all of EPCRA's reporting mandates are piggybacked on the CERCLA mandates in one form or another.'' Waterkeeper Alliance v. EPA, 853 F.3d 527, 532 (D.C. Cir. 2017). Under EPCRA sections 304(a)(1) and (a)(3), EPCRA reporting depends on whether a release requires notification under CERCLA section 103(a), and under EPCRA section 304(a)(2), EPCRA reporting depends on whether a release ``occurs in a manner'' that would require notification under CERCLA section 103(a). Therefore, EPCRA requires reporting only for releases that require notification under CERCLA or occur in a manner that would require notification under CERCLA. Under CERCLA section 103 as amended, air emissions from animal waste at farms do not require notification under CERCLA section 103(a) and do not occur in a manner that would require such notification. As a result, these types of releases are not subject to reporting under EPCRA section 304(a)(1), (a)(2) or (a)(3). Thus, to clarify that these types of releases are not subject to reporting under EPCRA section 304, EPA is proposing to amend the EPCRA release notification regulations to exempt air emissions from animal waste at farms from reporting under section 304. In doing so, EPA seeks to avoid inconsistent regulation of these types of releases under EPCRA and CERCLA, in [[Page 56794]] furtherance of the underlying purpose of this statutory framework. B. Legislative History EPA's understanding of EPCRA section 304(a)(2) is informed by the legislative history of EPCRA itself. In 1986, Congress passed EPCRA pursuant to Title III of the Superfund Amendments and Reauthorization Act (SARA). In the committee conference report addressing EPCRA, Congress discussed the three scenarios requiring release reporting under EPCRA section 304. With respect to EPCRA section 304(a)(2), the report states: ``This requires notification where there is a release of an extremely hazardous substance that would require notice under section 103(a) of CERCLA but for the fact that the substance is not specifically listed under CERCLA as requiring such notice.'' See 99 Cong. Conf. Report H. Rep. 962, October 3, 1986; SARA Leg. Hist. 38 (Section 304 Emergency Notification). Congress thus expressed its intent that state and local authorities be notified of a qualifying release under EPCRA, even if the substance released is not identified as a hazardous substance under CERCLA, when the release occurs in a manner as the types of releases that require notification under CERCLA section 103(a). Conversely, if the release occurs in a manner that Congress determines does not require notification under CERCLA section 103(a)--such as air emissions from animal waste at farms--then no reporting is required under EPCRA section 304(a)(2) (i.e., the third criterion of EPCRA section 304(a)(2) has not been met). The legislative history also reveals that Congress intended EPCRA section 304(a)(2) to operate to exclude continuous releases from EPCRA's immediate notification requirements because such releases do not occur in a manner that requires reporting under CERCLA section 103(a).\4\ The committee conference report explains: ``[R]eleases which are continuous or frequently recurring and do not require reporting under CERCLA are not required to be reported under [EPCRA section 304].'' Rather, continuous releases are subject to reduced reporting requirements pursuant to CERCLA section 103(f). As explained in section C.3. of this preamble, EPA incorporated an alternative for continuous releases into EPCRA and promulgated regulations that allow continuous releases to be reported in a manner consistent with CERCLA's continuous release reporting requirements. --------------------------------------------------------------------------- \4\ CERCLA section 103(a) requires the person in charge of a vessel or facility to ``immediately notify'' the NRC when there is a release of a hazardous substance in an amount equal to or greater than the reportable quantity for that substance within a 24-hour period. In contrast, releases that are continuous and stable in quantity and rate may qualify for reduced, ``continuous release'' reporting under CERCLA section 103(f)(2). Similarly, EPCRA section 304 requires owners or operators of certain facilities to ``immediately'' notify state and local authorities of qualifying releases, and EPA has promulgated regulations that allow continuous releases to be reported under EPCRA in a manner consistent with CERCLA's continuous release reporting requirements. --------------------------------------------------------------------------- Congress's intent in adopting the three scenarios in EPCRA section 304(a)(1)-(3) was to ensure that when Federal authorities receive notice of a release under CERCLA section 103(a), state and local authorities receive similar notice under EPCRA. Note that CERCLA notification applies to the list of hazardous substances (located in 40 CFR 302.4), while EPCRA notification applies to the lists of both CERCLA hazardous substances and EPCRA EHSs (located in 40 CFR part 355 Apps. A and B). When a substance is not a listed CERCLA hazardous substance, but is on the EPCRA EHSs list, EPCRA section 304(a)(2) provides for notification only if the release of such substance occurs in a manner as the types of releases that require notification under CERCLA section 103(a). On the other hand, if Congress determines that a release occurs in a manner that does not require notification under CERCLA section 103(a), EPCRA section 304(a)(2) works to logically exclude that release from EPCRA reporting. C. Prior Regulatory Actions As noted, CERCLA release notification was established to alert Federal authorities to a release so that the need for a response can be evaluated and any necessary response undertaken in a timely fashion. EPCRA release notification supplements CERCLA release notification by similarly preparing the community at the state and local level. Based on the criteria for EPCRA section 304 release reporting, and to promote consistency between CERCLA and EPCRA release notification requirements, the Agency has incorporated many of CERCLA's release notification exemptions into the EPCRA release notification regulations through prior rulemakings. Each of these prior regulatory actions are summarized below. 1. Exemptions From the Definition of ``Release'' Under CERCLA and EPCRA Both CERCLA and EPCRA define the term ``release.'' Under CERCLA section 101(22), the term ``release'' generally means ``any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant),'' but also includes specific exclusions for workplace releases, vehicle emissions, nuclear material releases and fertilizer application. Similar to the CERCLA workplace exposure exclusion, EPCRA section 304(a)(4) exempts from reporting any release which results in exposure to persons solely within the site or sites on which a facility is located. Though the definition of ``release'' under EPCRA section 329 mirrors the CERCLA definition, it does not contain three exclusions provided in the CERCLA section 101(22) definition of ``release'': (1) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine; (2) releases of source, byproduct or special nuclear material from a nuclear incident; and (3) the normal application of fertilizer. However, because the types of releases excluded from CERCLA's definition of ``release'' do not occur in a manner that would be reportable under CERCLA section 103(a), these types of releases do not meet the reporting requirements under EPCRA section 304. See 52 FR 13381, 13384-85 (April 22, 1987) and related Response to Comments document, April 1987, Docket Number 300PQ. Thus, EPA adopted these statutory CERCLA exclusions into the EPCRA regulations codified at 40 CFR 355.31.\5\ --------------------------------------------------------------------------- \5\ The 1987 rule codified these exemptions at 40 CFR 355.40(a)(2), which was later reorganized into 40 CFR 355.31. See 73 FR 65451 (November 3, 2008). --------------------------------------------------------------------------- 2. Exemptions From Immediate Notification Requirements There are four types of statutory exemptions from the immediate notification requirements for releases of hazardous substances provided in CERCLA sections 101(10) and 103(e) and (f). Specifically, these statutory exemptions include: (1) Federally permitted releases, as defined in section 101(10); (2) releases from the application of a pesticide product registered under the Federal Insecticide, Fungicide and Rodenticide Act or from the handling and storage of such a pesticide product by an agricultural producer (section 103(e)); (3) certain releases of hazardous wastes that are required to be reported under the provisions of the Resource Conservation and Recovery Act and that are reported to the NRC (section 103(f)(1)); and (4) [[Page 56795]] certain releases that are determined to be continuous under the provisions of section 103(f)(2). In the final rulemaking on April 22, 1987 (52 FR 13378) for emergency planning and release notification requirements under EPCRA, the Agency adopted exemptions from CERCLA section 103(a) reporting ``based on the language in EPCRA section 304(a) which requires that releases reportable under that Section occur in a manner which would require notification under section 103(a) of CERCLA.'' 52 FR 13378, 13381 (April 22, 1987). Although EPA stated in the April 1987 rulemaking that it was incorporating CERCLA reporting exemptions into the EPCRA regulations based on the criteria for EPCRA section 304 release reporting, the Agency inadvertently omitted the exclusion for the ``application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act or to the handling and storage of such a pesticide product by an agricultural producer'' from the EPCRA section 304 regulations at that time. Thus, in a technical amendment published on May 24, 1989 (54 FR 22543), EPA added a provision to the EPCRA regulations in 40 CFR 355.40(a)(2)(iv) (currently codified at 40 CFR 355.31(c)) providing that releases exempted from CERCLA section 103(a) reporting by CERCLA section 103(e) are also exempt from reporting under EPCRA section 304. In addition, the May 1989 technical amendment clarified the language in paragraph (a)(2)(v) of 40 CFR 355.40 (currently codified at 40 CFR 355.31(d)), explaining that this section exempts from EPCRA section 304 reporting ``any occurrence not meeting the definition of release under section 101(22) of CERCLA,'' as ``[s]uch occurrences are also exempt from reporting under CERCLA section 103(a).'' See 54 FR 22543, 22543 (May 24, 1989). 3. Continuous Release Reporting CERCLA section 103(f) provides relief from the immediate notification requirements of CERCLA section 103(a) for a release of a hazardous substance that is continuous and stable in quantity and rate. Instead, continuous releases are subject to a significantly reduced reporting requirement under regulations promulgated pursuant to CERCLA section 103(f). In adopting the implementing regulations for EPCRA in 40 CFR part 355, EPA relied on EPCRA section 304(a)(2) to likewise exclude continuous releases from the immediate notification requirement of EPCRA section 304, reasoning: ``Because such releases do not `occur in a manner' which requires immediate release reporting under section 103(a) of CERCLA, they are also not reportable under section 304 of [EPCRA].'' See 52 FR 13381, 13384 (April 22, 1987). EPA later promulgated continuous release reporting regulations for EPCRA that cross-reference and follow the CERCLA continuous release reporting regulations, finding that EPCRA release reporting is ``closely tied'' and ``parallel'' to CERCLA release reporting. See 55 FR 30169, 30179 (July 24, 1990). At that time, the Agency also reiterated that ``[t]o the extent that releases are continuous and stable in quantity and rate as defined by CERCLA section 103(f)(2) . . . , they do not occur in a manner that requires notification under CERCLA section 103(a)'' and are thus not subject to the EPCRA section 304 immediate notification requirements. Id. (emphasis added). IV. Scope of Proposed Rule The scope of this proposed rulemaking is limited to air emissions from animal waste (including decomposing animal waste) at a farm. The Agency proposes to add this reporting exemption to the EPCRA section 304 emergency release notification regulations as implemented in 40 CFR part 355, subpart C, entitled ``Emergency Release Notification.'' The scope of the proposed rulemaking stems from existing requirements under EPCRA section 304(a)(2) and under CERCLA section 103(e), as amended, and is tied to the nature or manner of these releases rather than to a specific substance. In other words, the Agency is not proposing to exempt substances typically associated with animal waste (such as ammonia or hydrogen sulfide) from reporting. Rather, this proposal codifies EPA's interpretation that air emissions from animal waste at farms are not subject to EPCRA section 304 release reporting by explicitly exempting releases from animal waste into the air at farms from reporting. Thus, the Agency is proposing to exclude all releases to the air from animal waste at a farm from reporting under EPCRA section 304. The proposed rulemaking does not apply to releases of substances from animal waste into non-air environmental media, nor to releases into the air from sources other than animal waste or decomposing animal waste at a farm. For example, a release from animal waste into water (e.g., a lagoon breach) or a release from an anhydrous ammonia storage tank into the air might trigger reporting requirements if the release exceeds the applicable reportable quantities. This proposed exemption would be added to those currently listed in the EPCRA regulations codified at 40 CFR 355.31, entitled ``What types of releases are exempt from the emergency release notification requirements of this subpart?'' To delineate the scope of this proposed exemption, EPA is also proposing to amend the definition section of the EPCRA regulations at 40 CFR 355.61 to add definitions of ``animal waste'' and ``farm'' that are consistent with CERCLA section 103(e). By proposing to add a reporting exemption for air releases from animal waste at farms to the EPCRA emergency release notification regulations, EPA is not reopening or proposing revisions to the existing reporting exemptions codified in 40 CFR 355.31, nor will EPA consider or respond to comments related to the existing reporting exemptions. Comments received on the existing reporting exemptions will be outside the scope of this proposed action. V. Relationship of Waterkeeper Alliance v. EPA to This Proposed Rule In 2008, EPA issued an administrative reporting exemption for air releases from animal waste at farms (73 FR 76948, December 18, 2008). 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 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. The 2008 administrative reporting exemption was ultimately 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. This proposal to amend the EPCRA section 304 release notification regulations to exempt air emissions from animal waste at farms is not constrained by the D.C. Circuit's decision in Waterkeeper. In contrast to the 2008 rule, this proposed rulemaking is not an administrative reporting exemption stemming from EPA's general rulemaking authority. This proposal is instead rooted in EPCRA section 304 and its relationship with CERCLA section 103 and as informed by [[Page 56796]] EPCRA section 304's statutory text, framework and legislative history. VI. Proposed Revisions to 40 CFR Part 355 A. Exemption for Air Emissions From Animal Waste at Farms For the reasons stated throughout this preamble, EPA is proposing to amend the EPCRA section 304 release notification regulations to exempt air emissions from animal waste (including decomposing animal waste) at a farm from reporting. Currently, the regulations at 40 CFR 355.31 list the releases that are exempt from reporting under EPCRA section 304, including the exemptions adopted from CERCLA through prior rulemakings. The Agency is proposing to amend 40 CFR 355.31 by adding a reporting exemption for air emissions from animal waste at farms. EPA seeks comment on this proposed revision. B. Definitions EPA is proposing to add the definitions of ``animal waste'' and ``farm'' applicable to CERCLA section 103(e) to the definition section of the EPCRA regulations codified at 40 CFR 355.61. EPA requests comment on adding these definitions to 40 CFR 355.61. VII. Statutory and Executive Orders Reviews Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders. A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs This action is not an Executive Order 13771 regulatory action because the proposed rule would not result in additional costs. C. Paperwork Reduction Act (PRA) This action does not impose any new information collection burden under the PRA. The Agency is proposing to codify a provision exempting farms from reporting air releases from animal waste under EPCRA section 304 release notification regulations. D. Regulatory Flexibility Act (RFA) I certify that this action would not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. Consistent with the Agency's interpretation that air emissions from animal waste at farms are not subject to EPCRA section 304 release reporting, the proposed rule explicitly exempts these types of releases from EPCRA reporting and would not result in additional costs. E. Unfunded Mandates Reform Act (UMRA) This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. The Agency is proposing to amend the EPCRA section 304 release notification regulations to add the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e), as amended. F. Executive Order 13132: Federalism This action does not have federalism implications. It would not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications as specified in Executive Order 13175. The EPA is proposing to amend the EPCRA section 304 release notification regulations to add the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e), as amended. Thus, Executive Order 13175 does not apply to this action. H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of covered regulatory action in section 2- 202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not pose an environmental health risk or safety risk. This proposed rule is intended to maintain consistency between EPCRA section 304 and CERCLA section 103(a) emergency release notification requirements by exempting reporting of air emissions from animal waste at farms. I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use This action is not a ``significant energy action'' because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. The EPA is proposing to amend the EPCRA section 304 release notification regulations to add the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e), as amended. J. National Technology Transfer and Advancement Act (NTTAA) This rulemaking does not involve technical standards. K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This proposed rule is intended to maintain consistency between EPCRA section 304 and CERCLA section 103(a) emergency release notification requirements by exempting reporting of air emissions from animal waste at farms under EPCRA. List of Subjects in 40 CFR Part 355 Environmental protection, Chemicals, Disaster assistance, Hazardous substances, Hazardous waste, Natural resources, Penalties, Reporting and recordkeeping requirements, Superfund. Dated: October 30, 2018. Andrew R. Wheeler, Acting Administrator For the reasons set forth in the preamble, EPA proposes to amend 40 CFR part 355 as follows: [[Page 56797]] PART 355--EMERGENCY PLANNING AND NOTIFICATION 0 1. The authority citation for part 355 continues to read as follows: Authority: Sections 302, 303, 304, 325, 327, 328, and 329 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) (42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 11049). 0 2. Amend Sec. 355.31 by adding paragraph (g) to read as follows: Sec. 355.31 What types of releases are exempt from the emergency release notification requirements of this subpart? * * * * * (g) Air emissions from animal waste (including decomposing animal waste) at a farm. 0 3. Amend Sec. 355.61 by adding in alphabetical order the definitions ``Animal waste'' and ``Farm'' to read as follows: Sec. 355.61 How are key words in this part defined? Animal waste means feces, urine, or other excrement, digestive emission, urea, or similar substances emitted by animals (including any form of livestock, poultry, or fish). This term includes animal waste that is mixed or commingled with bedding, compost, feed, soil, or any other material typically found with such waste. * * * * * Farm means a site or area (including associated structures) that-- (1) Is used for-- (i) The production of a crop; or (ii) The raising or selling of animals (including any form of livestock, poultry, or fish); and (2) Under normal conditions, produces during a farm year any agricultural products with a total value equal to not less than $1,000. * * * * * [FR Doc. 2018-24821 Filed 11-13-18; 8:45 am] BILLING CODE 6560-50-P
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List of Subjects ACTION: Proposed rule. official comment and should include
40 CFR Part 52 discussion of all points you wish to
SUMMARY: The Environmental Protection make. The EPA will generally not
Environmental protection, Agency (EPA or the Agency) is
consider comments or comment
Administrative practice and procedure, proposing to amend the release
notification regulations under the contents located outside of the primary
Air pollution control, Designations and submission (i.e., on the web, cloud, or
classifications, Incorporation by Emergency Planning and Community
Right-to-Know Act (EPCRA) to add the other file sharing system). For
reference, Intergovernmental relations,
reporting exemption for air emissions additional submission methods, the full
Nitrogen oxides, Ozone, Reporting and
recordkeeping requirements and from animal waste at farms provided in EPA public comment policy,
Volatile organic compounds. section 103(e) of the Comprehensive information about CBI or multimedia
Environmental Response, Compensation submissions, and general guidance on
40 CFR Part 81 and Liability Act (CERCLA). In addition, making effective comments, please visit
Environmental protection, EPA is proposing to add definitions of https://www.epa.gov/dockets/
Administrative practice and procedure, ‘‘animal waste’’ and ‘‘farm’’ to the commenting-epa-dockets.
Air pollution control, Designations and EPCRA regulations to delineate the
FOR FURTHER INFORMATION CONTACT: Sicy
classifications, Intergovernmental scope of this reporting exemption. This
relations, Nitrogen oxides, Ozone, proposed rulemaking maintains Jacob, United States Environmental
Reporting and recordkeeping consistency between the emergency Protection Agency, Office of Land and
requirements, and Volatile organic release notification requirements of Emergency Management, 1200
compounds. EPCRA and CERCLA in accordance with Pennsylvania Ave. NW (Mail Code
the statutory text, framework and 5104A), Washington, DC 20460;
Dated: November 7, 2018.
legislative history of EPCRA, and is telephone number: (202) 564–8019;
William L. Wehrum,
consistent with the Agency’s prior email address: jacob.sicy@epa.gov.
Assistant Administrator.
regulatory actions. SUPPLEMENTARY INFORMATION:
[FR Doc. 2018–24816 Filed 11–13–18; 8:45 am]
DATES: Comments must be received on
BILLING CODE 6560–50–P
or before December 14, 2018. I. General Information
ADDRESSES: Submit your comments, A. Does this action apply to me?
ENVIRONMENTAL PROTECTION identified by Docket ID No. EPA–HQ–
AGENCY OLEM–2018–0318, at https:// A list of entities that could be affected
www.regulations.gov. Follow the online by this final rule include, but are not
40 CFR Part 355 instructions for submitting comments. necessarily limited to:
[EPA–HQ–OLEM–2018–0318; FRL–9986– Once submitted, comments cannot be
40–OLEM] edited or removed from Regulations.gov.
The EPA may publish any comment
RIN 2050–AH00 received to its public docket. Do not
submit electronically any information
Emergency Release Notification
you consider to be Confidential
Regulations on Reporting Exemption
Business Information (CBI) or other
for Air Emissions From Animal Waste
information whose disclosure is
at Farms; Emergency Planning and
restricted by statute. Multimedia
Community Right-to-Know Act
submissions (audio, video, etc.) must be
AGENCY: Environmental Protection accompanied by a written comment.
Agency (EPA). The written comment is considered the
Type of entity Examples of affected entities
Industry ..................................................................................... NAICS code 111—Crop production.
NAICS code 112—Animal production.
States and/or Local Governments ........................................... NAICS code 999200—State Government, excluding schools and hospitals.
NAICS code 999300—Local Government, excluding schools and hospitals.
State Emergency Response Commissions, Tribal Emergency Response Commis-
sions, Tribal Emergency Planning Committees and Local Emergency Planning
Committees.
This table is not intended to be If you have questions regarding the proposing to add definitions of ‘‘animal
exhaustive, but rather provide a guide applicability of this action to a waste’’ and ‘‘farm’’ to the EPCRA
for readers regarding the types of particular entity, consult the person regulations to delineate the scope of this
entities that EPA is aware could be listed in the FOR FURTHER INFORMATION reporting exemption.
involved in the activities affected by CONTACT section.
C. What is the Agency’s authority for
this action. However, other types of B. What action is the Agency taking? taking this action?
entities not listed in this table could be
affected by this proposed rulemaking. The EPA is proposing to amend the This proposed rulemaking is being
To determine whether your entity is EPCRA emergency release notification issued under EPCRA, which was
affected by this action, you should regulations to include the reporting enacted as Title III of the Superfund
carefully examine the applicability exemption for air emissions from animal Amendments and Reauthorization Act
criteria found in § 355.30 of title 40 of waste at farms provided in CERCLA (SARA) of 1986 (Pub. L. 99–499). EPA
the Code of Federal Regulations (CFR). section 103(e). In addition, EPA is proposes this rulemaking under the
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under section 103(a) of CERCLA need contemplates scenarios where releases releases from CERCLA reporting based
only be reported under EPCRA if the not subject to reporting under CERCLA on the manner or nature of these
release: may still need to be reported under releases. Instead, Congress exempted
• Is not a federally permitted release EPCRA, such as releases of substances these types of releases from CERCLA
as defined in section 101(10) of designated as EHSs under EPCRA but reporting by excluding petroleum
CERCLA, not as hazardous substances under (including crude oil or any fraction
• Is in an amount in excess of the CERCLA. For example, thereof) from the definition of
reportable quantity as determined by trimethylchlorosilane (Chemical ‘‘hazardous substance.’’ See 42 U.S.C.
EPA, and Abstract Service No. 75–77–4) is 9601(14). As such, these types of
• Occurs in a manner that would designated as an EPCRA EHS but not as releases still ‘‘occur[ ] in a manner’’ that
require notification under section 103(a) a CERCLA hazardous substance. Since would require notification under
of CERCLA. trimethylchlorosilane is not a CERCLA CERCLA section 103(a) and could thus
A release that is not subject to hazardous substance, its releases are not be subject to reporting under EPCRA
CERCLA section 103(a) reporting must subject to notification under CERCLA section 304(a)(2) where the petroleum
meet all three criteria in EPCRA section section 103(a) and need only be release contains an EHS. See 52 FR
304(a)(2) to be subject to EPCRA reported under EPCRA if such releases 13378, 13385 (April 22, 1987). In sum,
reporting. Here, air emissions from meet the criteria of EPCRA section where a CERCLA reporting exemption
animal waste at farms could meet the 304(a)(2). A trimethylchlorosilane or the reason a release is not subject to
first two criteria because such releases release that (1) is not a federally CERCLA reporting is unrelated to the
are generally not federally permitted permitted release as defined in CERCLA manner in which such releases occur,
and may exceed the applicable section 101(10); (2) exceeds the EPCRA section 304(a)(2) may compel
reportable quantity. Yet these types of applicable reportable quantity; and (3) reporting of such releases.
releases do not ‘‘occur[] in a manner’’ ‘‘occurs in a manner’’ that would
that would require notification under In addition to the statutory text of
require notification under CERCLA EPCRA section 304(a)(2), the statutory
CERCLA section 103(a) and thus do not section 103(a) would still be subject to
meet the third criterion of EPCRA framework of EPCRA’s reporting
EPCRA reporting. In this example, a requirements indicates a desire to
section 304(a)(2). Because air emissions
release of trimethylchlorosilane ‘‘occurs maintain consistency between the
from animal waste at farms do not meet
in a manner’’ that would require EPCRA and CERCLA reporting
all three criteria under EPCRA section
notification under CERCLA section requirements. Indeed, ‘‘[i]n drafting the
304(a)(2), and do not fall within the
103(a) where, for example, the release is EPCRA reporting requirements,
EPCRA section 304(a)(1) or (a)(3)
‘‘into the environment’’ as defined in Congress expressly tied them to
reporting scenarios, these types of
CERCLA section 101(22), and is not one CERCLA’s’’ such that ‘‘all of EPCRA’s
releases are not subject to EPCRA
of the excluded or exempted types of reporting mandates are piggybacked on
reporting. As such, EPA is proposing to
releases described in CERCLA sections the CERCLA mandates in one form or
amend EPCRA’s emergency release
notification regulations to clarify 101(22), 103(e), or 103(f). (See section C another.’’ Waterkeeper Alliance v. EPA,
reporting exemptions for certain types of this preamble, for further explanation 853 F.3d 527, 532 (D.C. Cir. 2017).
of releases under EPCRA section 304. of these exemptions.) Therefore, the Under EPCRA sections 304(a)(1) and
Air emissions from animal waste at release of trimethylchlorosilane would (a)(3), EPCRA reporting depends on
farms no longer ‘‘occur[] in a manner’’ be similar to other releases that require whether a release requires notification
that would require notification under notification under CERCLA section under CERCLA section 103(a), and
CERCLA section 103(a) because the 103(a).3 under EPCRA section 304(a)(2), EPCRA
recent amendment exempted these As another example, petroleum reporting depends on whether a release
types of releases from CERCLA (including crude oil or any fraction ‘‘occurs in a manner’’ that would
reporting. Importantly, the CERCLA thereof) is expressly excluded from the require notification under CERCLA
reporting exemption is specifically tied definition of ‘‘hazardous substance’’ in section 103(a). Therefore, EPCRA
to the nature or manner of these releases CERCLA section 101(14). Because of requires reporting only for releases that
rather than to a specific substance. For this ‘‘petroleum exclusion,’’ releases of require notification under CERCLA or
example, the recent amendment does petroleum are not subject to notification occur in a manner that would require
not exempt specific substances typically under CERCLA section 103(a) and so notification under CERCLA. Under
associated with animal waste (such as need to be reported under EPCRA only CERCLA section 103 as amended, air
ammonia and hydrogen sulfide) from if such releases meet the criteria of emissions from animal waste at farms
reporting; rather, it exempts from EPCRA section 304(a)(2). Where a do not require notification under
reporting releases of any substance from petroleum release meets the first two CERCLA section 103(a) and do not
animal waste at a farm into the air. criteria of EPCRA section 304(a)(2), the occur in a manner that would require
Because air emissions from animal question becomes whether the release such notification. As a result, these
waste do not ‘‘occur[] in a manner’’ that ‘‘occurs in a manner’’ that would types of releases are not subject to
would require notification under require notification under CERCLA reporting under EPCRA section
CERCLA section 103(a), these types of section 103(a). Notably, unlike air 304(a)(1), (a)(2) or (a)(3). Thus, to clarify
releases do not meet the third criterion emissions from animal waste at farms, that these types of releases are not
of EPCRA section 304(a)(2) and are thus Congress did not exempt petroleum subject to reporting under EPCRA
not subject to EPCRA reporting. 3 See, e.g., 48 FR 23552, 23555 (May 25, 1983)
section 304, EPA is proposing to amend
EPCRA section 304(a)(2) promotes (describing the nature of releases subject to
the EPCRA release notification
consistency between the reporting CERCLA notification requirements); 52 FR 13378, regulations to exempt air emissions
requirements of EPCRA and CERCLA by 13383 (April 22, 1987) (explaining that the method from animal waste at farms from
ensuring that only releases that ‘‘occur[ used to determine whether a release meets or reporting under section 304. In doing so,
exceeds the applicable RQ under CERCLA ‘‘should
] in a manner’’ that would require be equally applicable to releases under [EPCRA]
EPA seeks to avoid inconsistent
CERCLA notification be reported under section 304 due to similarity to section 103 of regulation of these types of releases
EPCRA. Yet, the provision also CERCLA’’). under EPCRA and CERCLA, in
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![56794 Federal Register / Vol. 83, No. 220 / Wednesday, November 14, 2018 / Proposed Rules
furtherance of the underlying purpose of reported under [EPCRA section 304].’’ discharging, injecting, escaping,
this statutory framework. Rather, continuous releases are subject leaching, dumping, or disposing into the
to reduced reporting requirements environment (including the
B. Legislative History
pursuant to CERCLA section 103(f). As abandonment or discarding of barrels,
EPA’s understanding of EPCRA explained in section C.3. of this containers, and other closed receptacles
section 304(a)(2) is informed by the preamble, EPA incorporated an containing any hazardous substance or
legislative history of EPCRA itself. In alternative for continuous releases into pollutant or contaminant),’’ but also
1986, Congress passed EPCRA pursuant EPCRA and promulgated regulations includes specific exclusions for
to Title III of the Superfund that allow continuous releases to be workplace releases, vehicle emissions,
Amendments and Reauthorization Act reported in a manner consistent with nuclear material releases and fertilizer
(SARA). In the committee conference CERCLA’s continuous release reporting application. Similar to the CERCLA
report addressing EPCRA, Congress requirements. workplace exposure exclusion, EPCRA
discussed the three scenarios requiring Congress’s intent in adopting the section 304(a)(4) exempts from reporting
release reporting under EPCRA section three scenarios in EPCRA section any release which results in exposure to
304. With respect to EPCRA section 304(a)(1)–(3) was to ensure that when persons solely within the site or sites on
304(a)(2), the report states: ‘‘This Federal authorities receive notice of a which a facility is located. Though the
requires notification where there is a release under CERCLA section 103(a), definition of ‘‘release’’ under EPCRA
release of an extremely hazardous state and local authorities receive section 329 mirrors the CERCLA
substance that would require notice similar notice under EPCRA. Note that definition, it does not contain three
under section 103(a) of CERCLA but for CERCLA notification applies to the list exclusions provided in the CERCLA
the fact that the substance is not of hazardous substances (located in 40 section 101(22) definition of ‘‘release’’:
specifically listed under CERCLA as CFR 302.4), while EPCRA notification (1) Emissions from the engine exhaust of
requiring such notice.’’ See 99 Cong. applies to the lists of both CERCLA a motor vehicle, rolling stock, aircraft,
Conf. Report H. Rep. 962, October 3, hazardous substances and EPCRA EHSs vessel or pipeline pumping station
1986; SARA Leg. Hist. 38 (Section 304 (located in 40 CFR part 355 Apps. A and engine; (2) releases of source, byproduct
Emergency Notification). B). When a substance is not a listed or special nuclear material from a
Congress thus expressed its intent that CERCLA hazardous substance, but is on nuclear incident; and (3) the normal
state and local authorities be notified of the EPCRA EHSs list, EPCRA section application of fertilizer. However,
a qualifying release under EPCRA, even 304(a)(2) provides for notification only because the types of releases excluded
if the substance released is not if the release of such substance occurs from CERCLA’s definition of ‘‘release’’
identified as a hazardous substance in a manner as the types of releases that do not occur in a manner that would be
under CERCLA, when the release occurs require notification under CERCLA
in a manner as the types of releases that reportable under CERCLA section
section 103(a). On the other hand, if 103(a), these types of releases do not
require notification under CERCLA Congress determines that a release
section 103(a). Conversely, if the release meet the reporting requirements under
occurs in a manner that does not require EPCRA section 304. See 52 FR 13381,
occurs in a manner that Congress notification under CERCLA section
determines does not require notification 13384–85 (April 22, 1987) and related
103(a), EPCRA section 304(a)(2) works Response to Comments document, April
under CERCLA section 103(a)—such as to logically exclude that release from
air emissions from animal waste at 1987, Docket Number 300PQ. Thus,
EPCRA reporting. EPA adopted these statutory CERCLA
farms—then no reporting is required
under EPCRA section 304(a)(2) (i.e., the C. Prior Regulatory Actions exclusions into the EPCRA regulations
third criterion of EPCRA section As noted, CERCLA release codified at 40 CFR 355.31.5
304(a)(2) has not been met). notification was established to alert 2. Exemptions From Immediate
The legislative history also reveals Federal authorities to a release so that Notification Requirements
that Congress intended EPCRA section the need for a response can be evaluated
304(a)(2) to operate to exclude There are four types of statutory
and any necessary response undertaken
continuous releases from EPCRA’s exemptions from the immediate
in a timely fashion. EPCRA release
immediate notification requirements notification requirements for releases of
notification supplements CERCLA
because such releases do not occur in a hazardous substances provided in
release notification by similarly
manner that requires reporting under CERCLA sections 101(10) and 103(e)
preparing the community at the state
CERCLA section 103(a).4 The committee and (f). Specifically, these statutory
and local level. Based on the criteria for
conference report explains: ‘‘[R]eleases exemptions include: (1) Federally
EPCRA section 304 release reporting,
which are continuous or frequently permitted releases, as defined in section
and to promote consistency between
recurring and do not require reporting 101(10); (2) releases from the
CERCLA and EPCRA release notification
under CERCLA are not required to be application of a pesticide product
requirements, the Agency has
registered under the Federal Insecticide,
incorporated many of CERCLA’s release
4 CERCLA section 103(a) requires the person in Fungicide and Rodenticide Act or from
notification exemptions into the EPCRA
charge of a vessel or facility to ‘‘immediately the handling and storage of such a
release notification regulations through
notify’’ the NRC when there is a release of a pesticide product by an agricultural
hazardous substance in an amount equal to or prior rulemakings. Each of these prior
producer (section 103(e)); (3) certain
greater than the reportable quantity for that regulatory actions are summarized
substance within a 24-hour period. In contrast, releases of hazardous wastes that are
below.
releases that are continuous and stable in quantity required to be reported under the
and rate may qualify for reduced, ‘‘continuous 1. Exemptions From the Definition of provisions of the Resource Conservation
release’’ reporting under CERCLA section 103(f)(2). ‘‘Release’’ Under CERCLA and EPCRA and Recovery Act and that are reported
Similarly, EPCRA section 304 requires owners or
operators of certain facilities to ‘‘immediately’’ Both CERCLA and EPCRA define the to the NRC (section 103(f)(1)); and (4)
notify state and local authorities of qualifying term ‘‘release.’’ Under CERCLA section
releases, and EPA has promulgated regulations that 5 The 1987 rule codified these exemptions at 40
allow continuous releases to be reported under
101(22), the term ‘‘release’’ generally CFR 355.40(a)(2), which was later reorganized into
EPCRA in a manner consistent with CERCLA’s means ‘‘any spilling, leaking, pumping, 40 CFR 355.31. See 73 FR 65451 (November 3,
continuous release reporting requirements. pouring, emitting, emptying, 2008).
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![Federal Register / Vol. 83, No. 220 / Wednesday, November 14, 2018 / Proposed Rules 56795
certain releases that are determined to which requires immediate release This proposed exemption would be
be continuous under the provisions of reporting under section 103(a) of added to those currently listed in the
section 103(f)(2). CERCLA, they are also not reportable EPCRA regulations codified at 40 CFR
In the final rulemaking on April 22, under section 304 of [EPCRA].’’ See 52 355.31, entitled ‘‘What types of releases
1987 (52 FR 13378) for emergency FR 13381, 13384 (April 22, 1987). EPA are exempt from the emergency release
planning and release notification later promulgated continuous release notification requirements of this
requirements under EPCRA, the Agency reporting regulations for EPCRA that subpart?’’ To delineate the scope of this
adopted exemptions from CERCLA cross-reference and follow the CERCLA proposed exemption, EPA is also
section 103(a) reporting ‘‘based on the continuous release reporting proposing to amend the definition
language in EPCRA section 304(a) regulations, finding that EPCRA release section of the EPCRA regulations at 40
which requires that releases reportable reporting is ‘‘closely tied’’ and CFR 355.61 to add definitions of
under that Section occur in a manner ‘‘parallel’’ to CERCLA release reporting. ‘‘animal waste’’ and ‘‘farm’’ that are
which would require notification under See 55 FR 30169, 30179 (July 24, 1990). consistent with CERCLA section 103(e).
section 103(a) of CERCLA.’’ 52 FR At that time, the Agency also reiterated By proposing to add a reporting
13378, 13381 (April 22, 1987). that ‘‘[t]o the extent that releases are exemption for air releases from animal
Although EPA stated in the April continuous and stable in quantity and waste at farms to the EPCRA emergency
1987 rulemaking that it was rate as defined by CERCLA section release notification regulations, EPA is
incorporating CERCLA reporting 103(f)(2) . . . , they do not occur in a not reopening or proposing revisions to
exemptions into the EPCRA regulations manner that requires notification under the existing reporting exemptions
based on the criteria for EPCRA section CERCLA section 103(a)’’ and are thus codified in 40 CFR 355.31, nor will EPA
304 release reporting, the Agency not subject to the EPCRA section 304 consider or respond to comments
inadvertently omitted the exclusion for immediate notification requirements. Id. related to the existing reporting
the ‘‘application of a pesticide product (emphasis added). exemptions. Comments received on the
registered under the Federal Insecticide, existing reporting exemptions will be
Fungicide, and Rodenticide Act or to IV. Scope of Proposed Rule
outside the scope of this proposed
the handling and storage of such a The scope of this proposed action.
pesticide product by an agricultural rulemaking is limited to air emissions
producer’’ from the EPCRA section 304 from animal waste (including V. Relationship of Waterkeeper
regulations at that time. Thus, in a decomposing animal waste) at a farm. Alliance v. EPA to This Proposed Rule
technical amendment published on May The Agency proposes to add this In 2008, EPA issued an administrative
24, 1989 (54 FR 22543), EPA added a reporting exemption to the EPCRA reporting exemption for air releases
provision to the EPCRA regulations in section 304 emergency release from animal waste at farms (73 FR
40 CFR 355.40(a)(2)(iv) (currently notification regulations as implemented 76948, December 18, 2008). Specifically,
codified at 40 CFR 355.31(c)) providing in 40 CFR part 355, subpart C, entitled the rule exempted all farms from
that releases exempted from CERCLA ‘‘Emergency Release Notification.’’ The CERCLA’s reporting requirements for air
section 103(a) reporting by CERCLA scope of the proposed rulemaking stems releases of any hazardous substance
section 103(e) are also exempt from from existing requirements under from animal waste. Under EPCRA, the
reporting under EPCRA section 304. In EPCRA section 304(a)(2) and under 2008 rule exempted reporting of such
addition, the May 1989 technical CERCLA section 103(e), as amended, releases if the farm had fewer animals
amendment clarified the language in and is tied to the nature or manner of than a large concentrated animal feeding
paragraph (a)(2)(v) of 40 CFR 355.40 these releases rather than to a specific operation, as defined by the Clean Water
(currently codified at 40 CFR 355.31(d)), substance. In other words, the Agency is Act. The 2008 administrative reporting
explaining that this section exempts not proposing to exempt substances exemption was ultimately vacated by
from EPCRA section 304 reporting ‘‘any typically associated with animal waste the U.S. Court of Appeals for the District
occurrence not meeting the definition of (such as ammonia or hydrogen sulfide) of Columbia Circuit in Waterkeeper
release under section 101(22) of from reporting. Rather, this proposal Alliance v. EPA, 853 F.3d 527 (D.C. Cir.
CERCLA,’’ as ‘‘[s]uch occurrences are codifies EPA’s interpretation that air 2017). In vacating the rule, the court
also exempt from reporting under emissions from animal waste at farms found that the Agency could not rely on
CERCLA section 103(a).’’ See 54 FR are not subject to EPCRA section 304 general rulemaking authority or a de
22543, 22543 (May 24, 1989). release reporting by explicitly minimis exception to issue an
exempting releases from animal waste administrative reporting exemption for
3. Continuous Release Reporting into the air at farms from reporting. this category of releases, particularly
CERCLA section 103(f) provides relief Thus, the Agency is proposing to where the Agency had failed to identify
from the immediate notification exclude all releases to the air from any statutory ambiguity as the basis for
requirements of CERCLA section 103(a) animal waste at a farm from reporting its interpretation of the reporting
for a release of a hazardous substance under EPCRA section 304. requirements.
that is continuous and stable in quantity The proposed rulemaking does not This proposal to amend the EPCRA
and rate. Instead, continuous releases apply to releases of substances from section 304 release notification
are subject to a significantly reduced animal waste into non-air regulations to exempt air emissions
reporting requirement under regulations environmental media, nor to releases from animal waste at farms is not
promulgated pursuant to CERCLA into the air from sources other than constrained by the D.C. Circuit’s
section 103(f). In adopting the animal waste or decomposing animal decision in Waterkeeper. In contrast to
implementing regulations for EPCRA in waste at a farm. For example, a release the 2008 rule, this proposed rulemaking
40 CFR part 355, EPA relied on EPCRA from animal waste into water (e.g., a is not an administrative reporting
section 304(a)(2) to likewise exclude lagoon breach) or a release from an exemption stemming from EPA’s
continuous releases from the immediate anhydrous ammonia storage tank into general rulemaking authority. This
notification requirement of EPCRA the air might trigger reporting proposal is instead rooted in EPCRA
section 304, reasoning: ‘‘Because such requirements if the release exceeds the section 304 and its relationship with
releases do not ‘occur in a manner’ applicable reportable quantities. CERCLA section 103 and as informed by
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![Federal Register / Vol. 83, No. 220 / Wednesday, November 14, 2018 / Proposed Rules 56797
PART 355—EMERGENCY PLANNING (g) Air emissions from animal waste feed, soil, or any other material typically
AND NOTIFICATION (including decomposing animal waste) found with such waste.
at a farm. * * * * *
■ 1. The authority citation for part 355 ■ 3. Amend § 355.61 by adding in Farm means a site or area (including
continues to read as follows: alphabetical order the definitions associated structures) that—
Authority: Sections 302, 303, 304, 325, ‘‘Animal waste’’ and ‘‘Farm’’ to read as (1) Is used for—
327, 328, and 329 of the Emergency Planning follows: (i) The production of a crop; or
and Community Right-to-Know Act of 1986 (ii) The raising or selling of animals
(EPCRA) (42 U.S.C. 11002, 11003, 11004, § 355.61 How are key words in this part (including any form of livestock,
11045, 11047, 11048, and 11049). defined? poultry, or fish); and
Animal waste means feces, urine, or (2) Under normal conditions,
■ 2. Amend § 355.31 by adding produces during a farm year any
paragraph (g) to read as follows: other excrement, digestive emission,
urea, or similar substances emitted by agricultural products with a total value
§ 355.31 What types of releases are animals (including any form of equal to not less than $1,000.
exempt from the emergency release livestock, poultry, or fish). This term * * * * *
notification requirements of this subpart? includes animal waste that is mixed or [FR Doc. 2018–24821 Filed 11–13–18; 8:45 am]
* * * * * commingled with bedding, compost, BILLING CODE 6560–50–P
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Document Created: 2018-11-14 03:32:30
Document Modified: 2018-11-14 03:32:30
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received on or before December 14, 2018. | |
| Contact | Sicy Jacob, United States Environmental Protection Agency, Office of Land and Emergency Management, 1200 Pennsylvania Ave. NW (Mail Code 5104A), Washington, DC | |
| FR Citation | 83 FR 56791 | |
| RIN Number | 2050-AH00 | |
| CFR Associated | Environmental Protection; Chemicals; Disaster Assistance; Hazardous Substances; Hazardous Waste; Natural Resources; Penalties; Reporting and Recordkeeping Requirements and Superfund |
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