On October 26, 2017, the U.S. Environmental Protection Agency (EPA) released interim guidance to farmers on reporting air emissions from animal wastes on large livestock farms, the latest step in a years-long saga concerning the applicability of two federal statutes to farm air emissions. The next step will likely involve Congress.
EPA’s guidance comes in response to a federal court decision invalidating portions of a 2008 EPA rule. That rule exempted all farms from reporting hazardous air releases under section 103 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). It also exempted all farms from reporting air releases under section 304 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), except for large Concentrated Animal Feeding Operations (CAFOs). Unless a federal court takes action, certain large livestock farms will be required to report emissions to federal officials beginning November 15, 2017.
In the guidance, EPA announced that farms will be required to report hazardous air releases above threshold levels (called reportable quantities or RQs) to federal officials under CERCLA beginning November 15, 2017. According to EPA, hazardous substances associated with animal waste include ammonia and hydrogen sulfide. Farms releasing 100 pounds or more of these substances (the reportable quantity) within a 24-hour period must notify the National Response Center, a Coast Guard office designated to receive these reports. Certain large farms are likely to exceed the threshold and will therefore be subject to CERCLA section 103 reporting obligations.
Meanwhile, EPA also announced that it interprets EPCRA to exclude air releases from substances “used in routine agricultural operations” from reporting requirements under that statute. This would include animal waste stored on a farm and animal waste that is used as fertilizer. Other substances “used in routine agricultural operations” would include paint used for maintaining farm equipment and fuel used at the farm to operate machinery or heating buildings. Thus, if a farm only uses substances in “routine agricultural operations," the farm would not be a facility that produces, uses, or stores “hazardous chemicals,” and would therefore not be within the universe of facilities which are subject to EPCRA release reporting.
CERCLA Release Reporting
EPA’s guidance acknowledges that CERCLA release reporting will be “challenging for farmers” because there is “no generally accepted methodology for estimating emissions quantities at this time.” The guidance document includes links to resources (click on “Resources” or scroll to bottom of page) designed to help producers estimate emissions for reporting purposes, including tools for estimating ammonia and hydrogen sulfide emissions for dairy, hog, and poultry operations. Farms are not required to obtain actual monitoring data to make these estimates; a farmer’s professional judgment, knowledge of the facility’s operations, and/or engineering data are a sufficient basis for establishing emissions estimates.
Per EPA, farms will eligible for a streamlined reporting process known as “continuous release reporting” because EPA considers emissions from animal waste to be continuous and stable in quantity and rate. Under continuous release reporting, a farm must complete three initial steps. First, the farm must make an initial notification of the NRC by phone. Importantly, farmers should know that NRC does not require personally identifiable information, such as an address for a private residence, to be provided. EPA’s guidance says that “generic locations (such as [the] name of a city/town and state) may be sufficient.” Farmers should limit the information that they provide to that which is absolutely necessary. At this time, it is not clear what, if anything, EPA plans to do with the information it receives.
Second, the farm must submit a continuous release reporting form to the EPA Regional Office in writing within 30 days of notifying NRC. EPA expects to release a continuous release reporting form for use by farms. Finally, each reporting farm must submit a one-time anniversary follow-up report to the EPA Regional Office.
After these initial submissions, EPA’s guidance specifies that farms using continuous release reporting should review their estimates annually to ensure they remain within the range reported to EPA. On a continuing basis, farms need only report emissions estimates to NRC if the operation experiences a statistically significant increase in emissions or a change in previously submitted information. For farms, EPA has expressly said that these reports would like by triggered by (1) increases in animal numbers on the farm beyond the range used in making the initial report or (2) a significant change in waste handling systems or procedures.
Farm owners and operators who previously signed on to EPA’s Animal Feeding Operation Air Compliance Agreement and who remain in compliance with that agreement do not have a reporting obligation under either CERCLA or EPCRA. Additionally, no reporting of air emissions associated with normal fertilizer or pesticide application activities is required.
Comments from industry on the proposed guidance will be accepted until November 24, 2017. Michael Best attorneys, along with industry partners, continue to monitor the status of these reporting requirements and will continue to provide information as it becomes available.