Beginning Nov. 15, many livestock farms releasing hazardous substances to the air from animal waste are required to begin reporting air emissions.
In 2008, the EPA finalized a rule exempting almost all livestock farms from reporting requirements. The EPA based this rule on its determination that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right to Know Act (EPCRA) did not apply to livestock farm operations.
Activist groups, however, sued the EPA over that exemption. On April 11, 2017, the District of Columbia Circuit Court sided with the activists and struck down the EPA's rule, eliminating the reporting exemptions for farms. In response to a request from the EPA, the DC Circuit extended the date by which farms must begin reporting these releases to Nov. 15, 2017.
| Herman Hofman, Varnum|
As a result, all livestock farms large enough to emit levels of ammonia or hydrogen sulfide in excess of 100 pounds per day will be subject to the CERCLA reporting requirements. These reports will be similar to those already required for most operators under EPCRA.
The CERCLA reports will go to the National Response Center (NRC), while EPCRA reports go to designated state and local governmental departments.
Under CERCLA, any failure to immediately report a release in excess of a reportable quantity can result in a significant civil penalty.
On Oct. 26, 2017, the EPA issued guidance documents to assist farms in reporting air releases of hazardous substances from animal waste at farms. EPA guidance states that farms that have air releases of hazardous substances from animal wastes that are equal to or greater than their reportable quantities within any 24-hour period can comply with the notification requirements by notifying the NRC at 1-800-424-8802. Alternatively, owners can follow a streamlined reporting process known as "continuous release reporting." This requires the facility owner or operator to:
- Call NRC at 1-800-424-8802 to identify the reportable release as an "initial continuous release notification";
- Submit an initial written notification to the EPA regional office; and
- One year later, submit an additional follow-up written notification to the EPA regional office.
At this time, farm owners/operators in compliance with their Animal Feeding Air Compliance Agreement (70 FR 4958) are not expected to report air releases of hazardous substances from animal wastes under CERCLA and EPCRA.
Farmers spreading pesticides or fertilizer (including manure) on fields are also not required to report emissions unless there is a spill. Physical changes and controls at the farm are likely not needed at this time.
The EPA guidance information includes links to resources that farms can use to calculate emissions tailored to specific species of livestock.
View EPA's guidance and frequently asked questions on reporting air emissions from animal waste. EPA will revise this guidance as necessary to assist farm owners and operators to meet reporting obligations.
Herman Hofman is an associate at Varnum. For information about Varnum's agriculture practice, visit the Varnum law website.