In late 2008, the US Environmental Protection Agency (EPA) issued a “final rule” exempting air release reporting for animal waste at farms under two environmental regulations: the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right to Know Act (EPCRA).
The 2008 EPCRA exemption did not apply to large facilities, nor did it apply to facilities that have reporting obligations because of refrigeration (ammonia use). Also, the exemptions were very specific, applying to section 103 of CERCLA (relating to the Federal Government’s ability to respond to releases or threat of release) and section 304 of EPCRA (emergency release notification).
In early 2009, the EPA issued guidance for this exemption. However, as the title of this blog suggests, the final rule was not the final word. But first, here is a little background on how we got here.
What are CERCLA and EPCRA?
As mentioned above, CERCLA and EPCRA have specific reporting requirements – far more than outlined in this blog. These reporting requirements are designed to keep the community and local emergency response agencies informed of hazardous substances stored at the facilities. Accordingly, should emergency responders have to respond to events such as chemical fires, they can do so with appropriate protective equipment and fire-fighting materials.
Why did the EPA Exempt Farms from CERCLA and EPCRA?
From the December 28, 2007, notification in the Federal Register (page 73704):
“Specifically, to date, EPA has not initiated a response to any NRC notifications of ammonia, hydrogen sulfide, or any other hazardous substances released to the air where animal waste at farms is the source of that release. Moreover, we cannot foresee a situation where the Agency would take any future response action as a result of such notification of releases of hazardous substances from animal waste at farms because in all instances the source (animal waste) and nature (to the air over a broad area) are such that on-going releases makes an emergency response unnecessary, impractical and unlikely.”
While for many, this seemed to be a well-reasoned interpretation regarding the exemptions, it was challenged by environmental groups. The groups argued that neither CERCLA nor EPCRA allowed for these exemptions.
Exemption “Invalidated”
Proving once again that death and taxes are the only certainties in life, on April 11, 2017, nine years after the final rule became effective, the United States Court of Appeals for the District of Columbia Circuit has issued a ruling invalidating these reporting exemptions.
CERCLA and EPCRA Reporting for Farmers?
While the dust has yet to settle on this decision, it will likely affect larger livestock farms. If you exceed the reportable quantity of 100 pounds per day (hydrogen sulfide or ammonia), then you will likely have reporting obligations under CERCLA and EPCRA.
While we won’t venture a guess as to finality of this final, final decision, we would suggest that if you think this applies to you, you should consult with your environmental advisors (legal and technical).
If you have questions or require assistance, please feel free to contact me (jbolin@dragun.com) at 248-932-0228, ext 125.