[Federal Register Volume 83, Number 220 (Wednesday, November 14, 2018)]
[Proposed Rules]
[Pages 56791-56797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24821]


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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.

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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
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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.
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    \1\ 40 CFR part 300.
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    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:
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    \2\ In this document, emergency release notification and release 
reporting are used interchangeably.
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     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\
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    \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'').
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    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.
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    \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.
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    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\
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    \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).
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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


