[Federal Register Volume 84, Number 114 (Thursday, June 13, 2019)]
[Rules and Regulations]
[Pages 27533-27542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12411]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 355

[EPA-HQ-OLEM-2018-0318; FRL-9995-03-OLEM]
RIN 2050-AH00


Amendment to 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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
amending 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 adding 
definitions of ``animal waste'' and ``farm'' to the EPCRA regulations 
to delineate the scope of this reporting exemption. This amendment 
maintains consistency between the emergency release notification 
requirements of EPCRA and CERCLA in

[[Page 27534]]

accordance with the statutory text, framework and legislative history 
of EPCRA, and is consistent with the Agency's prior regulatory actions.

DATES: This final rule is effective July 15, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OLEM-2018-0318. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through http://www.regulations.gov.

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: 
jacob.sicy@epa.gov.

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.
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    This table is not intended to be exhaustive, but rather provide a 
guide for readers regarding the types of entities that EPA is aware 
could be involved in the activities affected by this action. However, 
other types of entities not listed in this table could be affected by 
this final rule. To determine whether your entity is affected by this 
action, you should carefully examine the applicability criteria found 
in 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 amending 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 adding 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 final rule 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 finalizes this action under the 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).

D. What is the background of this final rule?

    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).
    On March 23, 2018, the President signed into law the Consolidated

[[Page 27535]]

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.''
    The FARM Act amended CERCLA by providing an exemption from 
reporting air emissions from animal waste at farms. Because these types 
of releases are exempted under CERCLA, based on the release reporting 
criteria under EPCRA section 304, these types of releases are also 
exempt under EPCRA section 304.
    Consequently, on November 14, 2018, EPA published a proposed rule 
to amend the release reporting regulations under EPCRA section 304. The 
comment period closed on December 14, 2018. EPA received 87,473 
comments, of which 87,091 are mass mail campaigns opposing the proposed 
rule. The remaining were individual letters that either supported or 
opposed the proposed rule. EPA's response to significant comments are 
generally addressed below in Section V of this preamble. EPA developed 
a response to comment document to address all the comments received by 
the Agency on the proposed rule, which is in the docket EPA-HQ-OLEM-
2018-0318 to this final rule. In addition, this rulemaking generally 
tracks the guidance document EPA had previously issued after enactment 
of the FARM Act. Thus, EPA formally withdraws the guidance document 
entitled, ``How does the Fair Agricultural Reporting Method (FARM) Act 
impact reporting of air emissions from animal waste under CERCLA 
Section 103 and EPCRA Section 304?'' dated April 27, 2018.

II. Summary of This Final Rule

    This final rule amends the release reporting regulations under 
EPCRA section 304 by adding the reporting exemption in 40 CFR 355.31 
for air emissions from animal waste at farms, as proposed. EPA is also 
adding 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, as proposed. EPA believes this final 
rule appropriately reflects the relationship between CERCLA and EPCRA 
release reporting requirements and is consistent with the statutory 
text, framework and legislative history of EPCRA, as well as the 
Agency's prior regulatory actions.

III. Legal Rationale for This Final Rule

    This 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 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 is amending 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). 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). 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). Pursuant to EPCRA section 
304(a)(2), a release of an EPCRA EHS that is not subject to 
notification 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 amending the 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 FARM Act 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 FARM Act 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

[[Page 27536]]

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 it 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.) The reason the release is not 
subject to notification under CERCLA section 103(a) is because 
trimethylchlorosilane is not a CERCLA hazardous substance, not because 
there is anything particular about the release that renders it exempt.
    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 amending 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 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).\3\ 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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    \3\ 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

[[Page 27537]]

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 (or a federally permitted release and 
is above the applicable reportable quantity), 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.\4\
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    \4\ 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) 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) 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).

[[Page 27538]]

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 the Final Rule

    The scope of this rulemaking is limited to air emissions from 
animal waste (including decomposing animal waste) at a farm. The Agency 
is adding 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 
this 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 exempting substances 
typically associated with animal waste (such as ammonia or hydrogen 
sulfide) from reporting. Rather, this rulemaking 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 excluding all releases to the air from animal waste at a 
farm from reporting under EPCRA section 304.
    This 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 exemption is 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 exemption, EPA is finalizing, as 
proposed, the definitions of ``animal waste'' and ``farm'' to be 
consistent with CERCLA section 103(e). See 40 CFR 355.61 for the full 
text of these definitions.

V. Response to Comments

    EPA received comments from various organizations, including the 
National Association of SARA Title III Program Officials (NASTTPO), 
agricultural trade associations, farm bureaus, a university research 
center and environmental groups. EPA also received individual comment 
letters. This section provides a summary of major comments received and 
EPA's responses. A detailed summary of the comments and EPA's responses 
are in the Response to Comments document, a copy of which is in the 
docket for this rulemaking.

A. General Comments Supporting the Proposed Rule

    Several commenters, NASTTPO, agricultural trade associations, the 
Department of Agriculture from West Virginia and North Dakota, farm 
bureaus and a few private citizens, expressed general support for the 
proposed amendment to the EPCRA section 304 release reporting 
regulations to add the reporting exemption for air emissions from 
animal waste at farms provided in CERCLA section 103(e). In support of 
the proposed amendment, commenters stated that the proposed rule lays 
out the proper reading of the law and is consistent with Congress' 
clear intent that EPCRA section 304 and CERCLA release reporting 
requirements should be applied consistently except in certain very 
limited circumstances. Some of the commenters stated that EPCRA was 
never intended to govern agricultural operations, where emissions from 
livestock are a part of everyday life and are certainly not emergency 
situations. The natural breakdown of livestock manure does not 
constitute an emergency release pursuant to the CERCLA and EPCRA laws. 
One commenter stated that EPCRA was created to protect citizens from 
disasters such as 1984 Bhopal tragedy, however, animal agriculture 
cannot be compared to or included in a similar category designed to 
address toxic chemicals, hazardous substances and chemical emergencies.

B. General Comments Opposing the Proposed Rule

    EPA received numerous mass mail campaigns which include anonymous 
private citizens, citizen & environmental groups opposing the proposed 
amendment to add the reporting exemption to the EPCRA section 304 
emergency release notification regulations for air emissions from 
animal waste at farms. Several commenters strongly urge the EPA to 
withdraw the proposed rule, which commenters said would exempt 
concentrated animal feeding operations (CAFOs) from EPCRA reporting 
requirements so that reports of hazardous substance releases will be 
available to the public. Certain members of the Senate Environment and 
Public Works (SEPW) Committee strongly urged EPA to withdraw the 
proposed rule and faithfully execute and enforce EPCRA and CERCLA 
reporting requirements consistent with the laws passed by Congress.
    EPA also received individual comment letters opposing the proposed 
amendment. One commenter stated that it is the job of the EPA to 
regulate sources of hazardous emissions and protect the population from 
known sources of these emissions. One commenter asked EPA not to ignore 
and vacate their right-to-know by exempting the CAFO's responsibility 
to control and report the toxic emissions they are required to control 
and report.
    EPA's Response: While EPA recognizes commenters' concerns regarding 
animal waste emissions, this amendment is based on the statutory 
language in EPCRA section 304 and its relationship to CERCLA section 
103 release reporting requirements. The basic purpose of emergency 
release notification requirements under EPCRA section 304 is for 
facilities to inform state and local agencies of accidental releases so 
that these agencies can exercise the local emergency response plan if 
necessary. This may include, but is not limited to, providing shelter 
or evacuating the community to prevent acute exposure from accidental 
releases of chemicals. EPCRA section 304 serves as a notification 
requirement for chemical accidental releases, it is not intended to 
regulate emissions.
    In their letter to EPA dated June 1, 2017, the members of NASTTPO 
indicated that the release reports for air emissions from animal waste 
at farms provide little value to local agencies and first responders, 
and are generally ignored. NASTTPO states that open dialogue and 
coordination among farms and local agencies can be more effective than 
release reporting to address animal waste management at farms. NASTTPO 
reiterated this principle in its comment to this rulemaking, dated 
December 14, 2018. In addition, regardless of reporting, EPA can still 
enforce applicable laws and regulations to address threats to human 
health and the environment. This rulemaking does not limit the Agency's 
authority under CERCLA sections 104 (response authorities), 106 
(abatement actions), 107 (liability), or any other provisions of

[[Page 27539]]

CERCLA to address releases of hazardous substances at farms.

C. Comments on the Proposal To Add Definitions of ``animal waste'' and 
``farm''

    EPA requested comments on adding the definitions of ``animal 
waste'' and ``farm'' to the definition section of EPCRA regulations in 
40 CFR part 355.
1. Support
    A few commenters supported adding the definitions of ``animal 
waste'' and ``farm'' to EPCRA regulations in 40 CFR part 355. These 
commenters expressed that the incorporation of the FARM Act's 
definitions of ``animal waste'' and ``farm'' into the ECPRA regulations 
provides important regulatory clarity to agricultural producers. In 
their comments, NASTTPO expressed that EPA has crafted a narrow and 
specific exemption from the reporting of releases from animal waste 
from farms.
2. Oppose
    Many commenters as part of mass mail campaigns as well as few 
individual commenters opposed adding the definitions of ``animal 
waste'' and ``farm'' to the EPCRA regulations in 40 CFR part 355. One 
of the commenters specifically stated that limiting definitions of what 
constitutes a farm, or animal waste merely hides problems and that we 
should be striving for more transparency on issues concerning emissions 
that affect climate and public health, not trying to limit 
transparency. Another commenter stated that it is only the large CAFOs 
that can release sufficient volumes of toxic pollutants, as ammonia and 
hydrogen sulfide into the air which obviously will then end up in our 
soil and water.
    EPA's Response: On March 23, 2018, the Fair Agricultural Reporting 
Method (FARM) Act of 2018 amended CERCLA section 103 to exempt the 
reporting of air emissions from animal waste at a farm. See Fair 
Agricultural Reporting Method Act, Public Law 115-141 Sec. Sec.  1101-
1103 (2018). The FARM Act includes definitions for ``animal waste'' and 
``farm.'' On August 1, 2018, EPA promulgated a final rule to 
incorporate the FARM Act legislation into the CERCLA reporting 
regulations at 40 CFR part 302 (see 83 FR 37446), including definitions 
for ``animal waste'' and ``farm.'' This amendment is based on EPA's 
interpretation of EPCRA section 304(a)(2) and its relationship to 
CERCLA section 103 as amended by the FARM Act. Thus, the Agency 
believes it is reasonable to promulgate the same definitions for 
``animal waste'' and ``farm'' into the EPCRA release reporting 
regulations to maintain consistency between the statutes and to 
effectuate the exemption under EPCRA.

D. Comments on the Legal Rationale for the Proposed Rule

    EPA received comments supporting and opposing the legal rationale 
for the proposed rule. Below is a summary of the significant comments 
received and EPA's responses. Details of these comments and the 
Agency's responses are addressed in the Response to Comments document 
which can be found in the docket for this rulemaking.
1. Support
    A few commenters state that Congress intended for EPCRA reporting 
requirements to be consistent with or ``linked to'' CERCLA reporting 
requirements, which is evinced by the statutory language in EPCRA 
section 304(a)(2). Commenters stated that EPA has the authority 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). Commenters also note that an 
analysis prepared by the Congressional Research Service (CRS) at the 
request of the Senate Committee on Environment and Public Works (EPW) 
supports EPA's interpretation as presented in the proposed rule. In 
sum, commenters state the proposed rule is a sound and lawful 
codification based on the statutory language in EPCRA and CERCLA.
2. Oppose
    EPA received comments with a wide range of arguments opposing the 
Agency's legal rationale for the proposed rule. The following is a 
brief summary of comments on each topic presented in the preamble to 
the proposed rule. Details of comments received and the Agency's 
response can be found in the Response to Comments document at the 
docket for this rulemaking.
i. Statutory Text
    A few commenters argue the proposed rule is in direct contravention 
of the plain language of EPCRA and CERCLA and is therefore 
``fundamentally flawed'' and ``illegal.'' One commenter argues that the 
phrase ``occurs in a manner'' makes it clear that even if a release is 
not reported under CERCLA, EPCRA reporting would still be required if 
the ``factual'' circumstances of the release would otherwise require 
CERCLA reporting. The commenter also stated that EPA arbitrarily based 
its interpretation of ``occurs in a manner'' on the method or type of 
release (i.e., into the air) rather than on the substance emitted. 
Additionally, this commenter argues that the statute provides no 
support for such an interpretation. Another commenter expressed that 
the plain language of EPCRA is unambiguous in that it prohibits EPA 
from exempting animal feeding operations from EPCRA's reporting 
requirements; but even if there was some ambiguity in the statute, the 
proposed rule is arbitrary and capricious because EPA has not provided 
a reasoned explanation to justify its departure from the statute or 
supported that explanation with substantive record evidence.
    EPA's Response: EPA's interpretation is lawful and based on the 
plain language of EPCRA and CERCLA. EPA reasonably interpreted the 
operative language in EPCRA section 304(a)(2) as requiring EPCRA 
reporting when the release ``occurs in a manner'' which would require 
notification under CERCLA section 103(a). Because air emissions from 
animal waste at farms do not ``occur in a manner'' that would require 
notification under CERCLA section 103(a), such releases are not 
reportable under EPCRA section 304(a)(2).
    EPA disagrees with commenters' analysis that reporting of these 
types of air emissions would still be required under EPCRA so long as 
they are factually releases under CERCLA. EPA understands these 
comments to propose that the ``occurs in a manner'' language in EPCRA 
section 304(a)(2) means that a release only has to satisfy the 
definition of a ``release'' under CERCLA to be eligible for EPCRA 
reporting. Such a reading is unnecessary as the definition of a 
``release'' in EPCRA already mirrors the definition of a ``release'' in 
CERCLA. (see the definition of ``release'' under EPCRA section 329(8) 
and CERCLA section 101(22). While the CERCLA definition may focus more 
on hazardous substances and the EPCRA definition focusses more on 
extremely hazardous substances and hazardous or toxic chemicals, both 
definitions list similar types, ways, or manners of a release.
    EPA believes it is not a full and fair reading of EPCRA section 
304(a)(2) to say that EPCRA reporting would still be necessary if a 
release to the environment qualifies as a release to the environment 
under CERCLA, regardless of whether reporting is legally required under 
CERCLA. An EPCRA release into the environment already follows the 
definition of a release into the environment under CERCLA. Applied to 
the present rulemaking, emissions into

[[Page 27540]]

the air from animal waste at farms already qualify as releases into the 
environment under both statutes (i.e., they are ``emitting'' or 
``escaping'' under the statutory definitions). Further analysis of what 
factually is a release to the environment does not shed light on the 
Congressional intent of EPCRA section 304(a)(2) and does not follow the 
plain language of the statute, which requires, in part, that a release 
occurs in a manner which would require notification under CERCLA 
section 103(a).
    In enacting the FARM Act, the Senate EPW requested an analysis from 
the Congressional Research Service (CRS) of the potential effects of 
the FARM Act's amendments to CERCLA and EPCRA release reporting. The 
CRS issued two memorandums, March 7, 2018 (an overview of CERCLA and 
EPCRA release reporting, statutory exemptions, the 2008 CERCLA/EPCRA 
rule and resulting litigation, etc.) and March 13, 2018 (``Supplemental 
Analysis: Fair Agricultural Reporting Method Act/FARM Act (S.2421''). 
CRS agreed with this interpretation in its memorandum dated March 7, 
2018, which states:

    [T]he phrase ``occurs in a manner'' generally has been 
implemented over time to mean the nature of the release in terms of 
how the substance enters the environment. [CRS March 7, 2018 
memorandum page 6].

    The next question is whether the release would require notification 
under CERCLA section 103(a). As discussed earlier, the FARM Act 
exempted only releases of a certain kind or manner--air emissions from 
animal waste at farms--from notification under CERCLA section 103(a). 
Accordingly, these types of releases do not occur in a manner that 
would require notification under CERCLA section 103(a). Because the 
third criteria of EPCRA section 304(a)(2) is not met, no reporting 
under EPCRA is required.
    EPA believes its interpretation follows the plain language of the 
statute and carries out the Congressional intent of EPCRA section 
304(a)(2).
ii. Legislative History and Prior Agency Actions
    Commenters opposing the proposal argue that the legislative history 
of the FARM Act makes it clear that Congress intended for EPCRA 
reporting to continue notwithstanding the FARM Act's CERCLA exemption. 
The letter from certain Senate EPW members cites to testimony by 
Senators and witnesses explaining that the FARM Act makes no changes to 
reporting requirements for releases of extremely hazardous substances 
under EPCRA. Commenters assert that the proposed rule violates the 
legislative intent of the FARM Act. One commenter argues that EPCRA's 
legislative history does not support EPA's prior actions exempting 
certain releases from EPCRA reporting, such as the CERCLA continuous 
release provision.
    EPA's Response: In enacting the FARM Act, Congress amended the 
CERCLA section 103 reporting requirements; it did not amend the EPCRA 
section 304 reporting requirements. While the FARM Act legislative 
history has relevance with respect to the statutory changes to 
reporting under CERCLA section 103, EPA considered the text of EPCRA 
section 304 and its legislative history in issuing this rule. As stated 
throughout the proposed rule, EPA has interpreted EPCRA section 
304(a)(2) as carrying over CERCLA reporting exemptions related to the 
manner or nature of release. In this way, EPCRA section 304(a)(2) 
promotes consistency between EPCRA and CERCLA reporting. The 
legislative history of the FARM Act does not address the legislative 
history of EPCRA, and if Congress wished to ensure that the exemption 
in the FARM Act did not carry over into EPCRA reporting, it could have 
expressly enacted such statutory text, but it did not.
    The legislative history of the FARM Act is correct to the extent 
that the amendment does not exempt all releases from animal waste at 
farms from reporting under EPCRA. Rather, the amendment only exempts 
certain types of releases, and this rule tracks the FARM Act to provide 
that a limited type of release, air emissions from animal waste at 
farms, are not subject to reporting under EPCRA. This rule 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 is because the releases occur in a manner 
that require reporting under CERCLA because they are releases into a 
non-air media or they are not emissions from animal waste.
    The proposed rule also explains how, in the 1986 committee 
conference report addressing EPCRA, Congress expressed its intent that 
EPCRA release reporting be aligned with CERCLA reporting. As an 
example, the committee conference report explains how continuous 
releases which are not subject to immediate reporting requirements 
under CERCLA should likewise not be subject to EPCRA reporting. As 
result, EPA promulgated reduced reporting requirements that cross-
reference and follow the CERCLA reduced reporting requirements for 
continuous releases. In this manner, EPA reasonably followed 
Congressional intent to state that numerous types of releases are not 
subject to reporting under EPCRA when reporting wasn't required under 
CERCLA, including vehicle emissions, the normal application of 
fertilizer, and the application of registered pesticide products (see 
the Federal Register notice for the proposed rule for a more detailed 
discussion).
    The legislative history of the FARM Act's amendment to CERCLA did 
not nullify the statutory text in EPCRA section 304(a)(2). EPA 
reasonably interpreted that text and the proposed rule is supported by 
EPCRA's legislative history.

E. Other Comments

    EPA also received adverse comments on the rulemaking and its impact 
on environment and public health. These commenters expressed that the 
proposed exemption will prevent local emergency responders from 
accessing information to protect the community. Some commenters assert 
that the proposed rule is arbitrary and capricious because the Agency 
failed to consider environmental justice, the National Environmental 
Policy Act, and the Endangered Species Act prior to issuing the 
proposed rule.
    EPA's Response: Although these comments are outside the scope of 
this rulemaking, the Agency's response to these comments are provided 
in the Response to Comments document, which can be found in the docket 
to this rulemaking.

F. Request for Public Comment Period Extension & Public Hearings

    Three commenters, a university research organization, mass mail 
campaign and community group, requested EPA to extend the public 
comment period for the proposed rule. These commenters stated that the 
proposed rule may have significant consequences on the ability of local 
governments and their residents to protect their health and wellbeing, 
none of which seems to have been considered by EPA during the 
preparation of the proposed rule. Additionally, these commenters 
expressed that they need an additional 60 days to collect information 
from studies on health and

[[Page 27541]]

environmental impacts of CAFO air emissions on surrounding communities 
as rulemaking docket does not contain any scientific studies or other 
documents about toxic emissions from CAFOs and their impact on 
surrounding communities.
    Two groups, mass mail campaigns and community organization, 
requested public hearings on the proposed rule stating that given the 
impact that the proposed rule will have on communities across the 
country, including a disproportionate number of low-income and minority 
communities, EPA should schedule at least three public hearings in 
various locations across the country to ensure adequate public 
participation in the rulemaking process. EPA should hold these hearings 
in locations near to communities affected by CAFOs, for example, 
communities in North Carolina, Maryland, Iowa, or Oklahoma, to name a 
few.
    EPA's Response: EPA believes that the 30-day comment period was 
appropriate. The proposed rule is based on a reasonable interpretation 
of the statutory language in EPCRA section 304(a)(2) and its 
relationship with CERCLA section 103 as amended by the FARM Act. EPA's 
rationale is set out in the Federal Register notice for the proposed 
rule and all the supporting documents the Agency relied on are 
available in the associated docket.
    The proposed rule is not based on health or environmental risk, so 
no such associated studies are necessary. Because the proposed rule is 
based on a statutory interpretation, the record is not extensive, and 
therefore EPA did not believe such an extension should be granted. EPA 
also generally set out its statutory interpretation in the guidance 
document entitled ``How does the Fair Agricultural Reporting Method 
(FARM) Act impact reporting of air emissions from animal waste under 
CERCLA Section 103 and EPCRA Section 304?'' dated April 2018. That 
guidance document states: ``EPA intends to conduct a rulemaking to 
address the impact of the FARM Act on the reporting of air emissions 
from animal waste at farms under EPCRA.'' Accordingly, the commenters 
were provided a meaningful opportunity to comment and no extensions 
were necessary to comment on EPA's statutory interpretation. Similarly, 
no public meetings or hearing were required or deemed necessary to 
allow for comment on EPA's interpretation.

VI. Statutory and Executive Orders

    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 subject to Executive Order 13771 because this 
final rule does 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 codifying 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 will 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, this final 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 
amending 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 will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and 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 amending 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 final rule is not based on health or 
environmental effect, rather, it 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 amending 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.

[[Page 27542]]

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. EPA has no authority under 
EPCRA to prevent or reduce emissions from certain facilities or their 
operations. The rule presents a statutory interpretation intended to 
maintain consistency between EPCRA section 304(a) and CERCLA section 
103 release notification requirements and does not have any impact on 
human health or the environment.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

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: June 4, 2019.
Andrew R. Wheeler,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR part 
355 as follows:

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 definitions for 
``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. 2019-12411 Filed 6-12-19; 8:45 am]
 BILLING CODE 6560-50-P


