CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal Waste at Farms

PDF Version (13 pp, 182K, About PDF)

[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Rules and Regulations]
[Page 76948-76960]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de08-14]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 302 and 355
[EPA-HQ-SFUND-2007-0469; FRL-8753-9]
RIN 2050-AG37

CERCLA/EPCRA Administrative Reporting Exemption for Air Releases
of Hazardous Substances From Animal Waste at Farms

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: This final rule provides an administrative reporting exemption
from particular notification requirements under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended. In addition, this final rule provides a limited administrative
reporting exemption in certain cases from requirements under the
Emergency Planning and Community Right-to-Know Act, also known as Title
III of the Superfund Amendments and Reauthorization Act. Specifically,
the administrative reporting exemption applies to releases of hazardous
substances to the air that meet or exceed their reportable quantity
where the source of those hazardous substances is animal waste at farms.
    Nothing in this final rule changes the notification requirements if
hazardous substances are released to the air from any source other than
animal waste at farms (e.g., ammonia tanks), or if any hazardous
substances from animal waste are released to any other environmental
media, (e.g., soil, ground water, or surface water) when the release of
those hazardous substances is at or above its reportable quantity.
Also, the administrative reporting exemption under section 103 of the
Comprehensive Environmental Response, Compensation, and Liability Act,
does not limit any of the Agency's other authorities under the
Comprehensive Environmental Response, Compensation, and Liability Act
sections 104 (response authorities), 106 (abatement actions), 107
(liability), or any other provisions of the Comprehensive Emergency
Response, Compensation, and Liability Act or the

[[Page 76949]]

Emergency Planning and Community Right to Know Act.
    Accordingly, EPA believes this administrative reporting exemption
not only leaves in place important Agency response authorities that can
be used to protect human health and the environment if needed, but also
is consistent with the Agency's goal to reduce reporting burden,
particularly considering that Federal, State or local response
officials are unlikely to respond to notifications of air releases of
hazardous substances from animal waste at farms.

DATES: This final rule is effective on January 20, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. [EPA-HQ-SFUND-2007-0469]. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (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 either
electronically through www.regulations.gov or in hard copy at the
Superfund Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the Superfund Docket is (202) 566-0276.

FOR FURTHER INFORMATION CONTACT: Lynn Beasley, Regulation and Policy
Development Division, Office of Emergency Management (5104A),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone number: (202) 564-1965; fax number:
(202) 564-2625; e-mail address: Beasley.lynn@epa.gov.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:

I. General Information
    A. Does This Action Apply to Me?
    B. What Is the Statutory Authority for This Rulemaking?
    C. Which Hazardous Substances Are We Exempting From the
Notification Requirements of CERCLA and EPCRA?
II. Background
III. Summary of This Action
    A. What is the Scope of This Final Rule?
    B. How Does This Rule Differ From the Proposed Rule?
    i. Exemption From CERCLA Section 103 Reporting
    ii. Thresholds for Exemption From EPCRA Section 304 Reporting
    iii. Continuous Release Reporting
    C. Definitions
    i. Animal Waste
    ii. Farm
    D. What Is Not Included Within the Scope of This Rule?
    E. What Is EPA's Rationale for This Administrative Reporting Exemption?
    F. What Are the Economic Impacts of This Administrative
Reporting Exemption?
    G. Response to Comments
    i. Comments Regarding Elimination of Reporting Requirement
    ii. Comments Regarding Risk, Harm, and Exposure
    iii. Comments Regarding the Agency's Statutory Authority to
Issue This Rulemaking
    iv. Comments Indicating a Misunderstanding of the Proposed Rule
    v. Comments Regarding Definitions
    (1) Animal Waste
    (2) Farm
    vi. Comments Regarding Other Facilities
    vii. Comments Regarding Possible Situations That Would
Necessitate a Response
IV. Statutory and Regulatory Reviews
    A. Executive Order 12866 (Regulatory Planning and Review)
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132 (Federalism)
    F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
    G. Executive Order 13045 (Protection of Children From
Environmental Health & Safety Risks)
    H. Executive Order 13211 (Actions That Significantly Affect
Energy Supply, Distribution, or Use)
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income Populations)
    K. Congressional Review Act

I. General Information

A. Does This Action Apply to Me?

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        Type of entity               Examples of affected entities
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Industry.....................  NAICS Code 111--Crop Production.
                               NAICS Code 112--Animal Production.
State and/or Local             State Emergency Response Commissions, and
 Governments.                   Local Emergency Planning Committees.
Federal Government...........  National Response Center.
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    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is currently
aware could potentially be affected by this action; however, other
types of entities not listed in the table could also be affected. To
determine whether your facility is affected by this action, you should
carefully examine the criteria in section III.A of this final rule and
the applicability criteria in Sec.  302.6 of title 40 of the Code of
Federal Regulations (CFR) and 40 CFR Part 355, Subpart C-Emergency
Release Notification.\1\ If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
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    \1\ On November 3, 2008, EPA published a final rule, ``Emergency
Planning and Community Right-to-Know Act; Amendments to Emergency
Planning and Notification; Emergency Release Notification and
Hazardous Chemical Reporting'' (``EPCRA rule''). (See 73 FR 65452.)
That rule included revisions to the Emergency Planning Notification,
Emergency Release Notification and Hazardous Chemical Reporting
regulations. One of the revisions included reorganizing the Code of
Federal Regulations (CFR) so that it follows a plain language
format. This final rule uses the CFR citations of the EPCRA rule.
    Subpart C--Emergency Release Notification includes regulations
for, ``Who Must Comply'' (355.30--What facilities must comply with
the emergency release notification requirements? 355.31--What types
of releases are exempt from the emergency release notification
requirements of this subpart?, 355.32--Which emergency release
notification requirements apply to continuous releases?, and
355.33--What release quantities of EHSs and CERCLA hazardous
substances trigger the emergency release notification requirements
of this subpart?) ``How to Comply'' (355.40--What information must I
provide?, 355.41--In what format should the information be
submitted?, 355.42--To Whom Must I Submit the Information?, and
355.43--When Must I Submit the Information?).
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B. What Is the Statutory Authority for This Rulemaking?

    Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et
seq., as amended by the Superfund Amendments and Reauthorization Act
(SARA) of 1986, gives the Federal government broad authority to respond

[[Page 76950]]

to releases or threats of releases of hazardous substances from vessels
and facilities. The term hazardous substance is defined in section
101(14) of CERCLA primarily by reference to other Federal environmental
statutes. Section 102 of CERCLA gives the Environmental Protection
Agency (EPA or the Agency) authority to designate additional hazardous
substances. Currently, there are approximately 760 CERCLA hazardous
substances, exclusive of Radionuclides, F-, K-, and Unlisted
Characteristic Hazardous Wastes.
    CERCLA section 103(a) calls for immediate notification to the
National Response Center (NRC) when the person in charge of a facility
has knowledge of a release of a hazardous substance equal to or greater
than the reportable quantity (RQ) established by EPA for that
substance. In addition to the notification requirements established
pursuant to CERCLA section 103, section 304 of the Emergency Planning
and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001 et
seq., requires the owner or operator of certain facilities to
immediately report to State and local authorities releases of CERCLA
hazardous substances or any extremely hazardous substances (EHSs) if
they exceed their RQ (see 40 CFR 355.33). This final rule only applies
to CERCLA section 103 notification requirements, including the
provisions that allow for continuous release reporting found in
paragraph (f)(2) of CERCLA section 103, and EPCRA section 304
notification requirements.
    The Agency has previously granted such administrative reporting
exemptions (AREs) under the CERCLA section 103 and EPCRA section 304
notification requirements where the Agency has determined that a
Federal response to such a release is impracticable or unlikely. For
example, on March 19, 1998, the Agency issued a final rule (see 63 FR
13459) that granted exemptions for releases of naturally occurring
radionuclides. The rule, entitled Administrative Reporting Exemptions
for Certain Radionuclide Releases (``Radionuclide ARE''), granted
exemptions for releases of hazardous substances that pose little or no
risk or to which a Federal response is infeasible or inappropriate (see
63 FR 13461).
    The Agency relies on CERCLA sections 102(a), 103, and 115 (the
general rulemaking authority under CERCLA) as authority to issue
regulations governing section 103 notification requirements. The Agency
relies on EPCRA section 304 as authority to issue regulations governing
EPCRA section 304 notification requirements, and EPCRA section 328 for
general rulemaking authority. The Agency will continue to require
certain reports under EPCRA section 304, specifically for those
facilities that meet the size thresholds in 40 CFR 355.31(g) and
outlined below in section III.B.ii of this preamble.

C. Which Hazardous Substances Are We Exempting From the Notification
Requirements of CERCLA and EPCRA?

    EPA is exempting certain releases of hazardous substances to the
air from the notification requirements of CERCLA and to a limited
extent EPCRA emergency notifications, as implemented in 40 CFR 302.6
and 40 CFR Part 355, Subpart C-Emergency Notification Requirement,
respectively. Specifically, we are exempting those hazardous substance
releases that are emitted to the air from animal waste at farms. The
exemption to the CERCLA section 103 notification requirements will
apply to all releases of hazardous substances to the air from animal
waste at farms. However, to respond to comments expressing the desire
to receive information regarding releases from large concentrated
animal feeding operations (CAFOs), EPA is bifurcating these
administrative reporting exemptions in order to continue to require
EPCRA section 304 emergency notifications for those CAFO operations
that confine the large CAFO threshold of an animal species or above, as
defined in the National Pollutant Discharge Elimination System (NPDES)
program regulations. As such, the exemption to EPCRA section 304
emergency notification requirements will apply to air releases of
hazardous substances from animal waste at farms that are below the
thresholds in 40 CFR 355.31(g) and for those farms that have animals
that are not stabled or confined. (See 40 CFR 355.31(h)) For the
purposes of this rule, EPA considers animals (i.e., cattle) that reside
primarily outside of an enclosed structure (i.e., a barn or a feed lot)
and graze on pastures, not to be stabled or confined, and thus are
exempted from the reporting requirements under EPCRA Section 304.
    Section 324 of EPCRA requires that the follow-up emergency notice
shall be made available to the general public; thus emergency
notifications filed under EPCRA section 304 will be available to the
public. Farms that are required to report their releases under EPCRA
section 304 emergency notifications may continue to use continuous
release reporting as described in 40 CFR 355.32.
    Ammonia and hydrogen sulfide are the most recognized hazardous
substances that are emitted from animal waste. Specifically, ammonia is
a by-product of the breakdown of urea and proteins that are contained
in animal waste, while hydrogen sulfide is another by-product of the
breakdown of animal waste under anaerobic conditions. However, other
hazardous substances, such as nitrogen oxide (NO) and certain volatile
organic compounds (VOCs) may also be released from animal waste. This
rule extends the administrative reporting exemption to all hazardous
substances emitted to the air from animal waste at farms.
    These hazardous substances can be emitted when animal waste is
contained in a lagoon or stored in under-floor manure pits in some animal
housing, manure stockpiles, or where animals are stabled or confined.

II. Background

    Under CERCLA section 103(a), the person in charge of a vessel or
facility from which a CERCLA hazardous substance has been released into
the environment in a quantity that equals or exceeds its RQ must
immediately notify the NRC of the release. A release is reportable if
an RQ or more is released into the environment within a 24-hour period
(see 40 CFR 302.6). This reporting requirement serves as a trigger for
informing the Federal government of a release so that Federal personnel
can evaluate the need for a response in accordance with the National
Contingency Plan (NCP) and undertake any necessary response action in a
timely fashion.
    The NRC is located at the United States Coast Guard (USCG)
headquarters and is the national communications center for the receipt
of all pollution incidents reporting. The NRC is continuously staffed
for processing activities related to receipt of the notifications. The
NCP regulations, 40 CFR 300.125, require that notifications of
discharges and releases be made by telephone and state that the NRC
will immediately relay telephone notices of discharges or releases to
the appropriate predesignated Federal on-scene coordinator (OSC). The
NRC receives an average of approximately 34,000 notifications of
releases or discharges per year, 99 percent of which are relayed to EPA.
    Under EPCRA section 304(a), three release scenarios require
notification.
    • First, if a release of an extremely hazardous substance
occurs from a facility at which a hazardous chemical is produced, used,
or stored, and such release requires a notification under section
103(a) of CERCLA, the owner or operator of a facility shall immediately
provide notice to the community emergency coordinator for the local

[[Page 76951]]

emergency planning committees (LEPC) for any area likely to be affected
by the release and to the State emergency response commission (SERC) of
any State likely to be affected by the release. (EPCRA section 304(a)(1))
    • EPCRA section 304(a) also requires the owner or operator
of the facility to immediately provide notice under EPCRA section
304(b) for either of the following two scenarios:
    [cir] If the release is an extremely hazardous substance, but not
subject to the notifications under section 103(a) of CERCLA. (EPCRA
section 304(a)(2))
    [cir] If the release is not an extremely hazardous substance and
only subject to the notifications under section 103(a) of CERCLA.
(EPCRA section 304(a)(3))
    EPCRA notification is to be given to the community emergency
coordinator for each LEPC for any area likely to be affected by the
release, and the SERC of any state likely to be affected by the
release. Through this notification, state and local officials can
assess whether a response action to the release is appropriate. EPCRA
section 304 notification requirements apply only to releases that have
the potential for off-site exposure and that are from facilities that
produce, use, or store a ``hazardous chemical,'' as defined by
regulations promulgated under the Occupational Safety and Health Act of
1970 (OSHA) (29 CFR 1910.1200(c)) and by section 311 of EPCRA.
    Owners and operators of farms, like all other facilities, are
required to report the release of hazardous substances into the
environment in accordance with CERCLA section 103 and EPCRA section 304
when it meets or exceeds the RQ of the hazardous substance. For
example, releases into the environment of ammonia or any other
hazardous substance, from tanks located on a farm, at or above an RQ
are required to be reported under CERCLA section 103 and EPCRA section 304.
    In 2005, EPA received a petition (poultry petition) from the
National Chicken Council, National Turkey Federation, and U.S. Poultry
& Egg Association, seeking an exemption from the CERCLA and EPCRA
reporting requirements for ammonia emissions from poultry operations.
The Agency published a notice in the Federal Register on December 27,
2005 (70 FR 76452), that acknowledged receipt of the poultry petition
and requested public comment. The comment period closed on March 27,
2006. This final rule does not address that petition. EPA will respond
to the petition in a separate action.
    Also, in 2005, EPA offered the owners and operators of animal
agricultural operations an opportunity to participate in the National
Air Emissions Monitoring Study (air monitoring study), that is being
conducted by an independent, non-profit organization and overseen by
EPA, through a consent agreement with the Agency. The purpose of the
air monitoring study is to develop emissions estimating methodologies
for all animal agricultural operations. Over 2,600 animal feeding
operations, representing over 14,000 farms, signed up to participate in
the study. The monitoring study, which began in the spring of 2007
includes 25 representative sites (lagoons or barns) on 21 different
farms in ten states (NC, NY, IA, WI, CA, KY, TX, WA, IN, and OK). The
sites will be monitored for a period of two years, allowing the Agency
to account for emissions variability by season, and for the effect of
any seasonal operational changes (such as pumping out lagoons), that
could have an effect on emission levels.
    The consent agreement also requires that within 120 days after
receiving an executed copy of the consent agreement, for any farm that
confines more than ten times the large CAFO threshold of animal
species, as defined in the NPDES program regulations, the animal
feeding operation provide to the NRC and to the relevant State and
local emergency response authorities written notice describing its
location and stating substantially as follows:

    ``This operation raises [species] and may generate routine air
emissions of ammonia in excess of the reportable quantity of 100
pounds per 24 hours. A rough estimate of those emissions is [ ]
pounds per 24 hours, but this estimate could be substantially above
or below the actual emission rate, which is being determined through
an ongoing monitoring study in cooperation with the U.S.
Environmental Protection Agency. When that emission rate has been
determined by this study, we will notify you of any reportable
releases pursuant to CERCLA section 103 or EPCRA section 304. In the
interim, further information can be obtained by contacting [insert
contact information for a person in charge of the operation].''

The requirement that these very large animal feeding operations (AFOs)
immediately report estimated releases of ammonia was solely for the
purposes of the air compliance agreement and not for purposes of
reporting under CERCLA or EPCRA. (See 70 FR 4958, Jan. 31, 2005.)
    At the end of the monitoring study, EPA will use the data along
with other relevant available data to develop emissions estimating
methodologies. The monitoring study results will be publicly available
upon completion of the study. In addition, EPA will publish the
emissions estimating methodologies based on these results within 18
months of the study's conclusion. Thus, such information will be widely
available to the public. Further details on the air monitoring study
are available at http://www.epa.gov/oecaagct/airmonitoringstudy.html.

III. Summary of This Action

A. What Is the Scope of This Final Rule?

    The scope of this rule is limited to releases of hazardous
substances to the air from animal waste at farms. Specifically, the
Agency is issuing an administrative reporting exemption from the CERCLA
section 103 notification requirements to the NRC (Federal government)
as implemented in 40 CFR 302.6 and a limited administrative reporting
exemption from the EPCRA section 304 notification requirements as
implemented in 40 CFR Part 355, Subpart C--Emergency Notification
Requirement. (See Section III.B.ii. for the thresholds that limit the
administrative reporting exemption for EPCRA section 304.) The scope of
this rule is intended to include all hazardous substances that may be
emitted to the air from animal waste at farms that would otherwise be
reportable under those sections. The Agency is not, in this rule,
defining facility, normal application of fertilizer, or routine
agricultural operations.

B. How Does This Rule Differ From the Proposed Rule?

    On December 28, 2007, the Agency proposed an administrative
reporting exemption from the CERCLA section 103 notification
requirements and the EPCRA section 304 emergency notification
requirements for air releases of hazardous substances that meet or
exceed their RQ from animal waste at all farms. The public comment
period lasted 90 days and closed on March 27, 2008. Through the public
comment process, the Agency received approximately 12,900 comments. A
substantial number of those comments (about 11,600) came in the form of
15 mass mail campaigns that either supported or opposed the proposed
rule. We also received many comments from people who appear to have
misunderstood the proposed rule, or assumed that the proposed rule was
a response to the poultry petition. Our response to significant
comments are generally addressed below in Section III.G of this
preamble, with all comments addressed in a response to comment
document, which is in the

[[Page 76952]]

docket (EPA-HQ-SFUND-2007-0469) to this final rule.\2\
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    \2\ The docket for EPA-HQ-SFUND-2007-0469 can be accessed
through www.regulations.gov.
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i. Exemption From CERCLA Section 103 Reporting
    This rule finalizes the administrative reporting exemption from the
CERCLA section 103 notification requirements as proposed, but limits
the administrative reporting exemption to EPCRA section 304 emergency
notification requirements by adding a size threshold. That is, at or
above the threshold adopted in this final rule, farms that generate
animal waste that release hazardous substances to the air at or above
the RQ must still report under EPCRA section 304, using the existing
notification procedures, including the use of continuous release
reporting. EPCRA section 304 notification requirements apply only to
releases that have the potential for off-site exposure.
    The Agency is finalizing the administrative reporting exemption
from the CERCLA section 103 notification requirements because EPA
continues to believe that Federal on-scene coordinators are unlikely to
respond to notifications of air releases of hazardous substances from
animal waste at farms.
    The Agency also believes that State or local emergency response
authorities are unlikely to respond to notifications of air releases of
hazardous substances from animal waste at farms. However, the Agency
did receive comments from the public, as well as from environmental
groups, a coalition of family farmers and others expressing the desire
for information regarding emissions of hazardous substances to the air
from large animal feeding operations. Accordingly, EPA decided to
bifurcate the administrative reporting exemption for EPCRA section 304
so as to retain certain emergency notifications for large CAFOs. In
addition, we sought comment on possible alternative definitions for
farm, indicating EPA might take factors such as size into account.
Although not specifically addressing the definition of a farm, we did
receive many comments asserting that very large farms are no different
than other industrial sources and should be regulated as such. We
believe that our threshold approach addresses those concerns.
ii. Thresholds for Exemption From EPCRA Section 304 Reporting
    A farm is above the threshold if it stables or confines \3\ animals
in numbers equal to or more than the numbers of animals specified for
each category given in the NPDES program regulations for large CAFOs.
These thresholds are discussed further in section III.E. below.
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    \3\ Animals that reside primarily outside of an enclosed
structure (i.e., a barn or a feed lot) and graze on pastures are not
stabled or confined. Animals that are not stabled or confined at
concentrated animal feeding operations are not counted toward the
threshold. Any emissions to the air of hazardous substances from the
waste of such animals while they are not stabled or confined are not
counted towards the calculation of a reportable quantity at a farm
that is above the threshold and subject to reporting, unless such
waste is consolidated into a storage unit.
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    (1) 700 mature dairy cows, whether milked or dry.
    (2) 1,000 veal calves.
    (3) 1,000 cattle other than mature dairy cows or veal calves.
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs.
    (4) 2,500 swine each weighing 55 pounds or more.
    (5) 10,000 swine each weighing less than 55 pounds.
    (6) 500 horses.
    (7) 10,000 sheep or lambs.
    (8) 55,000 turkeys.
    (9) 30,000 laying hens or broilers, if the farm uses a liquid
manure handling system.
    (10) 125,000 chickens (other than laying hens), if the farm uses
other than liquid manure handling system.
    (11) 82,000 laying hens, if the farm uses other than a liquid
manure handling system.
    (12) 30,000 ducks (if the farm uses other than a liquid manure
handling system).
    (13) 5,000 ducks (if the farm uses a liquid manure handling system).
iii. Continuous Release Reporting
    Continuous release reporting is available for those farms that are
at or above the threshold described above in section II.B.ii. In
general, the Agency believes that emissions from animal waste into the
air are usually continuous and stable in quantity and rate to qualify
as continuous releases pursuant to 40 CFR 302.8. The regulations
implementing EPCRA section 304 are found in 40 CFR Part 355, Subpart
C--Emergency Release Notification and describe the information required
for the EPCRA emergency notifications. At the present time, EPA has not
adopted conversion factors from which to derive quantities of common
hazardous substances from numbers of particular species of farm
animals. One purpose of the air monitoring study is to develop
estimating methodologies. In the meantime, when reports are submitted
pursuant to EPCRA section 304 for animal waste from farms, the Agency
expects reports to reflect good faith estimates from reporting
entities. In addition, EPA intends to issue guidance to assist those
farms that are required to submit reports under EPCRA section 304 with
continuous release reporting, as provided in 40 CFR 355, Subpart C--
Emergency Release Notification.

C. Definitions

    The Agency believes it is important to provide clarity with respect
to the scope of the reporting exemption. Therefore, the Agency is
providing definitions for animal waste and farm that only pertain to
regulations promulgated pursuant to CERCLA section 103 and EPCRA
section 304, specifically 40 CFR 302.3. and 40 CFR 355.61. These
definitions are not promulgated to apply for any other purpose.
i. Animal Waste
    Animal Waste--means manure (feces, urine, and other excrement
produced by livestock), digestive emissions, and urea. The definition
includes animal waste when mixed or commingled with bedding, compost,
feed, soil, and other materials typically found with animal waste.
    We sought comment on our proposed definition for animal waste, and
whether an alternative definition may be more appropriate. A few
commenters asked that we clarify that compost includes composted manure
and manure-based compost. EPA agrees that the definition of animal
waste does include such compost and to lend further clarity to the
definition, we made a slight change. Other comments on our proposed
definition for animal waste, along with our responses are addressed
below in section III.G.v.1 of this preamble and in the response to
comment document available in the docket (EPA-HQ-SFUND-2007-0469) to
this rule.
ii. Farm
    The Agency is limiting the reporting exemption to animal waste that
is generated on farms, and is using a specific definition for farm for
this administrative reporting exemption. For the purpose of this
administrative reporting exemption only, EPA defines farm by using the
same definition as that found in the National Agricultural Statistics
Service (NASS) Census of Agriculture, and adopting it.
    Farm--means a facility on a tract of land devoted to the production
of crops or raising of animals, including fish, which produced and
sold, or normally would have produced and sold, $1,000 or more of
agricultural products during a year.

[[Page 76953]]

    We sought comment on our proposed definition for a farm, and
whether an alternative definition may be more appropriate. Based on the
comments received, we concluded that the proposed definition for farm
was not consistent with other Agency uses for the term; that is, we
realized that the definition proposed had deviated from the NASS
definition, as well as the definition used by the Agency in its Spill
Prevention, Control and Countermeasure (SPCC) rule. As a result, the
definition for this rule has now been modified. Other comments on our
proposed definition for farm, along with our responses are addressed
below in section III.G.v.2 of this preamble and in the response to
comment document available in the docket (EPA-HQ-SFUND-2007-0469) to
this rule.

D. What Is Not Included Within the Scope of This Rule?

    As noted previously, the administrative reporting exemption from
the CERCLA section 103 notification requirements is limited in scope to
those releases of hazardous substances to the air that meet or exceed
their RQ from animal waste at farms and in the case of Section 304 of
EPCRA, only those releases of hazardous substances to the air from
animal waste at farms that are below the thresholds in 40 CFR 355.31(g)
are exempt. EPA is not exempting from the CERCLA section 103 or EPCRA
section 304 notification requirements releases of hazardous substances
from animal waste that meet or exceed the RQ to any other environmental
media or at any other facilities other than farms (i.e., meat
processing plants, slaughter houses, tanneries). Thus, notifications
must still be submitted if, for example, there was a release of any
hazardous substances that meet or exceed the RQ from animal waste into
water (e.g., a lagoon burst) or if there was a release of any hazardous
substances that meets or exceeds the RQ from animal waste into the air
or water at a slaughter house or meat processing plant. Likewise, EPA
is not exempting from the CERCLA section 103 or EPCRA section 304
notification requirements any release of hazardous substances to the
air that meets or exceeds the RQ from any source other than animal
waste at farms. Thus, for example, EPA is not proposing to exempt
ammonia releases from ammonia storage tanks at farms.
    The Agency believes that in these situations, the release of
hazardous substances that meets or exceeds the RQ should continue to be
reported because it is less clear that they will not result in a
response action from Federal, State or local governments. That is, such
notifications would alert the government to a situation that could pose
serious environmental consequences if not immediately addressed.
    Finally, it should be noted that no CERCLA or EPCRA statutory
requirements, other than the emergency hazardous substance notification
requirements under CERCLA section 103 and EPCRA section 304, are
included within this rule. The rule also does not limit the Agency's
authority under CERCLA sections 104 (response authorities), 106
(abatement actions), 107 (liability), or any other provisions of CERCLA
and EPCRA to address releases of hazardous substances from animal waste
at farms.

E. What Is EPA's Rationale for This Administrative Reporting Exemption?

    EPA's rationale for this administrative reporting exemption is
based on the purpose of notifying the NRC, and SERCs and LEPCs when a
hazardous substance is released, and then the likelihood that a
response to that notification would be taken by any government agency.
    Upon receipt of a notification from the NRC, EPA determines whether
a response is appropriate. See 40 CFR 300.130(c). If it is determined
that a response is appropriate, the NCP regulations describe the roles
and responsibilities for responding to the release. Thus, EPA
considered whether the Agency would ever take a response action, as a
result of such notification, for releases of hazardous substances to
the air that meet or exceed their RQ from animal waste at farms. Based
on our experience, the Agency believes that Federal on-scene
coordinators are unlikely to respond to such notifications.
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 can not foresee a situation where
the Agency would initiate a response action as a result of such
notification. Under this rule, however, EPA retains its authority to
respond to citizen complaints or requests for assistance from State or
local government agencies to investigate releases of hazardous
substances from animal waste at farms and respond if appropriate.
Furthermore, the Agency does not need to receive such notifications in
order to enforce applicable Clean Water Act (CWA), Clean Air Act (CAA),
Resource Conservation and Recover Act (RCRA), and/or other applicable
CERCLA and EPCRA regulations at farms. EPA retains the enforcement
authority to address threats to human health and the environment.
    Several States and localities also indicated that such response
actions are unlikely to be taken as a result of a notification of
releases of hazardous substances from animal waste at farms.
Specifically, EPA received 13 comment letters from State and/or local
emergency response agencies in response to our proposed rule, as well
as comments from 10 state agricultural departments that agreed with the
proposal to not require such notifications.\4\ These commenters all
affirmed EPA's belief that a response to a notification of air
emissions of hazardous substances from animal wastes is highly
unlikely. In fact, while we also received comment letters from
government officials and others, including environmental groups, that
the proposed rule is not appropriate due to potential harmful effects
of air pollution emanating from animal feeding operations, we received
no comments from any government official suggesting a response action
should or would be taken.
---------------------------------------------------------------------------

    \4\ The Agency also received 23 comment letters from State and/
or local emergency response agencies in response to the December
2005 Federal Register notice that acknowledged receipt of the
rulemaking petition from the National Chicken Council, the National
Turkey Federation, and the U.S. Poultry and Egg Association which
also agreed that such notifications were not necessary.
---------------------------------------------------------------------------

    The Agency did receive comments expressing a concern that air
emissions of hazardous substances from animal waste at the largest
animal feeding operations may pose a risk and therefore State and local
governments and the public should continue to receive reports of such
emissions. CERCLA and EPCRA do not require release reports under
section 103 of CERCLA and 304 of EPCRA, respectively, to be made
publicly available. However, section 324 of EPCRA does require the LEPC
and the SERC to make publicly available each follow-up emergency notice
provided under section 304(c).
    Based on these comments, the Agency has bifurcated the final rule
and is promulgating an administrative reporting exemption in order to
maintain the EPCRA section 304 reporting requirements for the largest
farms, that is, those farms that meet or exceed the thresholds
described in section III.B.ii, above. For this rule, the threshold that
will trigger reporting requirements is the same as the numbers of
animals specified in the categories regulated by the NPDES program for

[[Page 76954]]

large CAFOs. Comments regarding the elimination of the reporting
requirements are discussed below in section III.G.i.

F. What Are the Economic Impacts of This Administrative Reporting Exemption?

    This administrative reporting exemption will reduce the costs to
farms that release hazardous substances to the air that meet or exceed
their RQ from animal waste. Entities that are expected to experience a
reduction in burden and cost include both the farms that are no longer
required to report those releases, as well as the Federal government.
The economic analysis completed for this rule is available in the
docket for this rulemaking and is based on the underlying economic
analyses that were completed for the regulations that established the
notification requirements. We estimate that this final rule will reduce
burden on farms associated with making notifications under CERCLA
section 103 and EPRCRA section 304 by approximately 1,290,000 hours
over the ten-year period beginning in 2009 and associated costs by
approximately $60,800,000 over the same period. We estimate that this
rule will also reduce burden on government (including Federal, State
and local governments) for receipt and processing of the notifications
under CERCLA section 103 and EPCRA section 304 by approximately 161,000
hours over the ten-year period beginning in 2009 and associated costs
by approximately $8,110,000 over the same period. In evaluating the
potential burden and cost savings to those farms that would no longer
be required to make notifications under CERCLA section 103 and EPCRA
section 304 and for the government entities that are no longer required
to receive and process such notifications, we used the same universe as
used in the 2008 CAFO Rule (see 73 FR 70417, Nov. 20, 2008).

G. Response to Comments

    The Agency received comments on: (1) The elimination of the
reporting requirement; (2) the risk, harm, and exposure related to air
emissions from animal waste at farms; and (3) the Agency's statutory
authority to issue this rulemaking. Some comments also indicated a
misunderstanding of the proposed rule. Lastly, the Agency sought
specific comments in four areas. Those were: (1) Definitions (animal
waste and farm); (2) whether it is appropriate to expand the reporting
exemption to other facilities where animal waste is generated (i.e.,
zoos and circuses); (3) whether there might be a situation where a
response would be triggered by such a notification of the release of
hazardous substances to the air from animal waste at farms; and (4) if
so, what an appropriate response would be. The following is our
response to those substantive comments received. Comments not addressed
in this preamble are addressed in the response to comment document that
can be found in the Agency's docket for this rule (EPA-HQ-SFUND-2007-0469).
i. Comments Regarding Elimination of Reporting Requirement
    We received mixed comments on whether it is appropriate for the
Agency to eliminate the notification requirements under CERCLA section
103 and EPCRA section 304 for hazardous substances released to the air
at farms where the source of those hazardous substances is animal waste.
    Many commenters expressed general support for the proposed
elimination of the reporting requirements under CERCLA section 103 and
EPCRA section 304. Many of these commenters, including some local
emergency response agencies, stated that reporting emissions of
hazardous substances to the air that meet or exceed their RQ from
animal waste is of little value as it is common knowledge that
agricultural operations release ammonia on an ongoing basis and receipt
of such notifications could prove to be a hindrance in performing their
mission by overwhelming the system with notifications that will not be
responded to. Many commenters supporting the elimination of the
reporting requirements, particularly commenters representing the
agricultural community, also stated that emissions reporting is costly
and could put them out of business should they have to adhere to such a
regulation. Moreover, these same commenters defended the proposal by
pointing out that information about the location and emissions of CAFOs
is already publicly available. For example, one could readily determine
the number of laying hens there are in a particular county through
county specific data published by the U.S. Department of Agriculture's
(USDA's) National Agricultural Statistical Service. According to these
commenters, CERCLA/EPCRA reporting does not add in any meaningful way
to this knowledge base.
    On the other hand, the Agency received many comments that were
opposed to the elimination of the notification requirements under
CERCLA section 103 and EPCRA section 304. Many commenters opposed the
proposed elimination of these reporting requirements on the grounds
that reports provide good documentation, even if the content is not
reviewed and no response is appropriate. Several commenters stated that
reporting information about emissions enables citizens to hold
companies and local governments accountable in terms of how toxic
chemicals are managed and even allows agencies to identify a facility's
proximity to schools where children may be at higher risk of adverse
health effects due to exposure.
    In addition, many commenters asserted that the proposed rule
interferes with the public's right to know about large releases of
toxic chemicals. Others stated that factory farms should not be
protected from the laws that affect all other industries. Several
commenters asserted that CAFOs are not family farms, arguing that they
are industries that produce high amounts of pollutants and should be
treated as such.
    Finally, a commenter suggested that farms should be exempt from the
monitoring and reporting of pollutant releases until measuring and
testing procedures become more accurate and that the exemptions should
apply until there are more feasible monitoring practices enacted. The
commenter argued that it was unfair to require such reporting when the
science surrounding ammonia releases is uncertain.
    The Agency appreciates the perspectives of both sides of the
reporting issue. We understand that the regulated community and some
SERCs and LEPCs believe that, in general, the release reports are
unnecessary, burdensome, and would not likely result in ``new''
information regarding emissions from farms. The Agency agrees. However,
many commenters also argued that reporting, especially for large CAFOs,
is important. Therefore, we have adopted a final rule that seeks to
address both concerns. As such, farms would be exempt from reporting
under CERCLA section 103 for the reporting of air releases of hazardous
substances from animal waste to the NRC; but, at the same time, those
farms that exceed the threshold established in 40 CFR 355.31(g), and
described above in section III.B.ii of this preamble, will still be
required to notify the community emergency coordinator for the LEPC for
any area likely to be affected by the release and to the SERC of any
State likely to be affected by the release under EPCRA section 304(b).
We believe the threshold is appropriate to continue to make available
information regarding large CAFOs sought by commenters. In accordance
with 40 CFR 355.31(h), farms that have animals that

[[Page 76955]]

are not stabled or confined are also exempt from reporting under EPCRA
section 304. For the purposes of this rule, EPA considers animals
(i.e., cattle) that reside primarily outside of an enclosed structure
(i.e., a barn) and graze on pastures not to be stabled or confined.
    In addition, after completion of the Air Monitoring Study and the
development and publication of emission estimating methodologies, the
Agency intends to review the results and consider if the threshold for
the EPCRA exemption is appropriate.
ii. Comments Regarding Risk, Harm, and Exposure
    EPA's rationale for the proposed rule is based on the purpose of
notifying the NRC, and SERCs and LEPCs when a hazardous substance is
released, and then the likelihood that a response to that release would
be taken by any government agency. The comments that cited risk, harm,
and exposure were used to either support or oppose the proposed rule.
    In supporting the proposed rule, many commenters provided general
statements to the effect that emissions from CAFOs pose no threat to
public health or the environment. Many other commenters also argued
that there is no evidence or studies that emissions pose any public
health risks or have environmental impacts that would warrant emergency
release reports from farms to the Federal level.
    In opposing the proposed rule, a number of commenters submitted
studies to support their conclusion that emissions from some farms pose
levels of risk, harm, and exposure that should be taken into
consideration by the Agency. Several commenters specifically cited a
2002 study entitled, ``Iowa Concentrated Animal Feeding Operations Air
Quality Study,'' conducted by Iowa State University and the University
of Iowa Study Group.\5\
---------------------------------------------------------------------------

    \5\ This study is available in the Superfund Docket at: EPA-HQ-
SFUND-2007-0469-0531.8.
---------------------------------------------------------------------------

    Several commenters suggested delaying any decisions on finalizing
the proposal until the Agency's air monitoring study is complete. These
commenters argued that EPA may find that these airborne contaminants
are more dangerous to human health than thought. Many of the commenters
who opposed the proposed rule also provided information pertaining to
the health impacts associated with CAFOs. Some provided anecdotal
evidence, while others cited published literature drawing a causal
link. Additional information regarding the anecdotal evidence and
published literature is provided in the response to comment document
available in the docket (HQ-EPA-SFUND-2007-0469) to this rule. Finally,
a number of commenters suggested that the adverse health effects that
have been demonstrated should be sufficient to continue to mandate
CERCLA and EPCRA reporting of ``toxic air emissions'' and step up
enforcement, as well.
    EPA appreciates the information provided by commenters, especially
those who submitted study information indicating the potential health
issues associated with the emissions from animal waste at farms. We
would first note that a number of the studies or information provided
addressed risk or health issues for workers on the farm; reporting
under section 304 of EPCRA addresses releases that are off-site of the
facility. In addition, as we noted previously, EPA is currently
overseeing a comprehensive study of CAFO air emissions (air monitoring
study) that is being conducted by an independent, non-profit
organization. The purpose of the air monitoring study is to develop
emissions estimating methodologies for all animal agricultural
operations. Over 2,600 agreements, representing over 14,000 farms,
signed up for the study. The monitoring study, which began in the
spring of 2007, includes 25 representative sites (lagoons or barns) on
21 different farms in ten states (NC, NY, IA, WI, CA, KY, TX, WA, IN,
and OK). The sites will be monitored for a period of two years,
allowing the Agency to account for emissions variability by season, and
for the effect of any seasonal operational changes (such as pumping out
lagoons), that could have an effect on emission levels. At the
conclusion of the air monitoring study, EPA will use the data along
with any other relevant, available data to develop emissions estimating
methodologies. The air monitoring study results will be publicly
available upon completion of the study. In addition, EPA will publish
the emissions estimating methodologies based on these results, within
18 months of the study's conclusion. The notification requirements
under CERCLA section 103 would not provide the type of data required in
order to draw the same conclusions that the more comprehensive air
monitoring study can provide. This rule does not address how air
emissions from CAFOs should be controlled.
    As we have discussed, EPA believes that a response to a
notification about an air release of a hazardous substance from animal
waste at a farm is unlikely and impracticable. We are therefore
exempting those notifications from CERCLA section 103 notification
requirements and to a limited extent EPCRA section 304 emergency
notification requirements. As discussed above, EPA does recognize that
the public may have a separate use for the notifications, and
therefore, the reporting exemption under Section 304 of EPCRA is
limited to farms that fall below the threshold discussed in III.B.ii.
Moreover, EPA is not limiting any of its response authorities in this
rule (should a State or local agency request assistance), nor are we
limiting any of our other authorities under CERCLA and EPCRA.
iii. Comments Regarding the Agency's Statutory Authority To Issue This
Rulemaking
    A number of commenters challenged EPA's legal authority to grant
these exemptions by stating that CERCLA and EPCRA do not give EPA the
authority to grant reporting exemptions. Another commenter argues that
EPA may not rest its basis for the exemption solely on evidence that a
Federal response to animal waste releases is unlikely.
    EPA disagrees with the commenters that challenge our authority to
provide administrative reporting exemptions. First, we would note that
EPA has on two other occasions exercised its authority to extend
administrative reporting exemptions to certain well-defined release
scenarios. Specifically, on March 19, 1998, the Agency issued a final
rule (see 63 FR 13459) that granted exemptions for releases of
naturally occurring radionuclides. The rule entitled, Administrative
Reporting Exemptions for Certain Radionuclide Releases (``Radionuclide
ARE''), granted exemptions for releases of hazardous substances that
pose little or no risk or to which a Federal response is infeasible or
inappropriate (see 63 FR 13461). Moreover, on October 4, 2006, the
Agency issued a final rule (see 71 FR 58525) that broadened the
existing reporting exemptions to include releases of less than 1,000
pounds of nitrogen oxide (NO) and less than 1,000 pounds of nitrogen
dioxide (NO₂) to the air in 24 hours (``NO_X
ARE'') that are the result of combustion. The NO and NO₂
exemptions were granted for releases of hazardous substances at levels
for which the CAA regulates nitrogen oxides that are considerably
higher than ten pounds.
    EPA also disagrees that it is barred from basing its exemption on
evidence that a Federal response to a notification of a release of
hazardous substances to the air from animal waste releases is unlikely.
Rather, for this rule, EPA has

[[Page 76956]]

made a determination that these reports are unnecessary because, in
most cases, a federal response is impractical and unlikely (i.e., we
would not respond to them since there is no reasonable approach for the
response). We also believe that because this administrative reporting
exemption is narrowly focused to the source (animal waste) and location
(at farms) of the hazardous substance emissions, it is appropriate to
base our rationale for this rule on the unlikelihood and
inappropriateness of a response.
iv. Comments Indicating a Misunderstanding of the Proposed Rule
    A number of the commenters seem to misunderstand what the Agency
was proposing. For example, commenters expressed general opposition to
removing air quality and clean air standards; removing clean air
protections; reducing pollution or emission standards; exemptions to
clean air standards; allowing farms to emit more pollutants;
deregulation of hazardous emissions; and an exemption from the CAA and
CWA. This rule would do none of this. Rather, this rule addresses only
the notification requirements under CERCLA section 103 and in a limited
manner, EPCRA section 304. EPA retains all other authorities under both
CERCLA and EPCRA, and the CAA and CWA standards also are unaffected by
this action.
v. Comments Regarding Definitions
    In order to provide clarity with respect to the scope of the
proposed reporting exemption, the Agency proposed definitions for
animal waste and farm. The definitions, as proposed, would be limited
in application to the regulations promulgated pursuant to CERCLA
section 103 specifically 40 CFR 302.3 and 40 CFR 355.61. We solicited
comment on those definitions.
(1) Animal Waste
    Because the Agency does not have an existing definition for animal
waste, EPA proposed to add a definition for animal waste to the Code of
Federal Regulations. The definition for animal waste in the proposed
rule was, ``manure (feces, urine, other excrement, and bedding,
produced by livestock that has not been composted), digestive
emissions, and urea. The definition includes animal waste when mixed or
commingled with bedding, compost, feed, soil and other materials
typically found with animal waste.'' We sought comment from the public
on the appropriateness, clarity and completeness of the definition.
    In general, the public was generally supportive of our proposed
definition of animal waste, as long as it is understood that this
definition is used solely for the purposes of CERCLA and EPCRA
reporting; however, there were a few requests for further
clarification. In particular, several commenters requested
clarification regarding the treatment of compost material, and
specifically whether composted manure is included in the definition of
animal waste. Similarly, other commenters suggested that EPA clarify
that manure-based compost is included in the definition of animal
waste. We have clarified in the discussion in section III.C.i., above,
that such composted manure and manure-based compost is included in the
definition of animal waste. Furthermore, we made a small change to the
definition of animal waste to help clarify this point.
    Several other commenters submitted alternative definitions. For
example, to reflect the need for controlling emissions of dangerous and
toxic emissions, a commenter suggested that animal waste be defined as
``manure (livestock produced feces, urine, other excrement, and bedding
that has not been composted), digestive emissions, and urea, which emit
dangerous and/or toxic gases in any quantity. This definition includes
animal waste when mixed or commingled with bedding, compost, feed, soil
and other materials typically found in animal waste.'' Another
commenter suggested an alternate definition which would define animal
waste as ``all constituents and byproducts of the decomposition of
manure (feces, urine, other excrement, and bedding, produced by
livestock or poultry that has not been composted), digestive emissions,
and urea.'' This suggested definition would also include ``animal waste
when mixed or commingled with water, bedding, compost, feed, soil and
other materials typically found with animal waste.'' Still another
commenter suggested the following definition for animal waste, ``manure
(feces, urine, or other excrement produced by livestock, and including
bedding), and any other livestock digestive emissions, regardless of
how stored, handled, composted or otherwise stockpiled. The definition
includes animal waste used in biogas production or other treatment
processes, or when mixed or commingled with bedding, compost, feed,
soil, and other materials typically found with animal waste.''
    While the Agency appreciates the suggestions provided by the
commenters, we believe that the proposed definition of animal waste is
broad enough to serve the purpose of defining the source of hazardous
substances emitted from farms for this administrative reporting
exemption, with the one clarification noted above. The definitions
proposed by the commenters do not offer additional clarity and in the
case of ``animal waste used in biogas production or other treatment
processes,'' suggest a broader use of manure that would extend to
facilities other than farms, and thus, beyond the scope of the final rule.
(2) Farm
    EPA proposed a definition for farm by slightly modifying the
definition found in the National Agricultural Statistics Service (NASS)
Census of Agriculture, as well as included Federal and State research
farms that utilize farm animals subject to the conditions experienced
on other farms (e.g., poultry, swine, dairy, and livestock research
farms). However, in the proposal, we incorrectly stated that the
proposed definition was used by USDA. Thus, the proposed definition for
farm was ``(a) any place whose operation is agricultural and from which
$1,000 or more of agricultural products were produced and sold, or
normally would have been sold, during the census year. Operations
receiving $1,000 or more in Federal government payments are counted as
farms, even if they have no sales and otherwise lack the potential to
have $1,000 or more in sales; or, (b) a Federal or state poultry,
swine, dairy or livestock research farm.'' The purpose of specifying
that Federal and State research farms that utilize farm animals subject
to the conditions experienced on other farms was to respond to concerns
that Federal and State research farms were included in the exemption.
The Agency sought comment on the proposed definition, and whether an
alternative definition may be more appropriate.
    Commenters generally expressed support for the definition of farm
because they understood it to be the definition used by USDA and
because it promotes consistency in definitions between agencies;
however, one commenter pointed out that the proposed definition is
inconsistent with the definition of farm used by EPA in its SPCC rule
(see 71 FR 77266, December 26, 2006) and therefore the Agency has two
differing definitions that could place a hardship on the regulated
community and gives the impression that the Agency is picking and
choosing definitions without considering the regulatory implications of
its decisions. The Agency agrees with this commenter and thus, EPA has
decided to use for this rule the same

[[Page 76957]]

definition of farm as the definition used in the SPCC rule. This
definition is also now the same definition found in the NASS Census of
Agriculture. Although not specifically stated in the definition, this
definition is broad and includes Federal or State poultry, swine, dairy
or livestock research farms that were included in the proposed definition.
    Another definition suggested by a commenter was to expand the
definition to include ``[any] operation that produces eggs, poultry,
swine, dairy, or other livestock in any amount,'' as well as all
production areas and land application areas. Another commenter
suggested that the definition be expanded to include non-Federal or
State research facilities. EPA disagrees with the commenters that
suggested an expanded definition of farm. We believe that the
definition in this rule encompasses the universe of operations that the
commenters are suggesting without adding confusion to the regulated
facilities, especially in light of the SPCC regulations.
vi. Comments Regarding Other Facilities
    The Agency is aware that animal waste is also generated at other
facilities, such as zoos and circuses. Because the focus of the
proposal was on animal waste generated or found at farms, EPA did not
propose to expand the reporting exemption beyond such facilities.
However, because the potential for release to the air of hazardous
substances from animal waste at other such facilities may present the
same issues that are presented by animal waste at farms, we did
specifically request comment on whether the administrative reporting
exemption should be expanded to include other types of facilities that
also generate animal waste, and if so, what other types of facilities
should be included in the reporting exemption.
    There was general support by the commenters for including within
the exemption other types of facilities (besides farms) that produce
animal waste. That is, while commenters generally agreed that the rule
should stay narrowly focused, they also argued that other types of
facilities that produce animal waste should also be included within the
exemption. Several other commenters stated that because the generation
of animal waste is a normal biological process, all animals' waste
should be administratively excluded from reporting.
    EPA appreciates the commenters' arguments that all animals' waste
should be excluded; however, we have decided to limit the final rule to
animal waste generated or produced at farms, and not include other
types of facilities, because the Agency has not looked sufficiently at
these other types of facilities to determine the likelihood that the
Agency would take a response action, if there was such a release to the
air of hazardous substances that meet or exceed their RQ from animal waste.
vii. Comments Regarding Possible Situations That Would Necessitate a
Response
    EPA specifically sought comment on whether there might be a
situation where a response would be triggered by such a notification of
the release of hazardous substances to the air that meet or exceeds the
RQ from animal waste at farms, and if so, what an appropriate response
would be to such notifications. Several commenters responded that there
are no circumstances where a manure-related release of emissions would
trigger an emergency response.
    On the other hand, there were some commenters that offered
scenarios that described the importance of receiving the notifications.
Specifically, one commenter noted that extreme weather fluctuations and
various pit pumping techniques may cause emissions to exceed reportable
quantities. Such fluctuations (e.g., differences in temperature,
rainfall frequency and intensity, wind speed, topography and soils)
could impact the amount of air emissions released from farms. Another
commenter cited a 2004 study entitled, Concentrated Animal Feeding
Operations: Health Risks from Air Pollution Institute for Agriculture
and Trade Policy,\6\ which noted that ``when pits are agitated for
pumping, some or all of these gases are rapidly released from the
manure and may reach toxic levels or displace oxygen, increasing the
risk to humans and livestock.''
---------------------------------------------------------------------------

    \6\ This document is available on line at: 
http://www.healthobservatory.org/library.cfm?refID=37388. 
---------------------------------------------------------------------------

    With respect to responses, one commenter stated that responses may
be needed to protect children who live in nearby homes and communities
from elevated levels of airborne ammonia and/or the fine particulates
that result from the ammonia releases. The commenter suggests that
adequate monitoring will provide facility operators with sufficient
warning to take remedial actions that will reduce ammonia formation and
release before regulatory thresholds are exceeded.
    Finally, one commenter stated that EPA has not examined such
situations that may arise when maintaining feeding operations and that
the Agency has not proven that emergency personnel would not benefit
from continuous release reports of hazardous substances from these
operations when attempting to save lives or prevent injury quickly in
the future.
    From a CERCLA section 104 response perspective, based on EPA's
experience, the Agency would rarely respond to such scenarios. In any
event, we retain our response authorities and would assist State and
local officials in their response, if requested. State or local
agencies (i.e., SERCs and LEPCs) also may require information for
emergency planning purposes under section 303(d) of EPCRA and make this
information available to the public under section 324 of EPCRA.

IV. Statutory and Regulatory Reviews

A. Executive Order 12866 (Regulatory Planning and Review)

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because it has been
determined that it raises novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the Executive Order. Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under EO 12866 and any
changes made in response to OMB recommendations have been documented in
the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
Rather, this final rule represents a reduction in burden for both
industry and the government by administratively exempting the reporting
requirement for releases of hazardous substances to the air that meet
or exceed their RQ from animal waste at farms from the CERCLA section
103 notification requirements and to a limited extent, the EPCRA
section 304 emergency notification requirements.
    However, the Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulation 40 CFR 302 under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control
number 2050-0046, EPA ICR number 1049.11 for 40 CFR 302.6 (Episodic
releases of oil and hazardous substances), OMB control number 2050-
0086, EPA ICR number 1445.07 for 40 CFR 302.8 (Continuous release
reporting requirements) (pending approval) and OMB control

[[Page 76958]]

number 2050-0092, EPA ICR number 1395.06 for 40 CFR 355 (Emergency
planning and notification). The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
    We estimate that this final rule will reduce burden on farms
associated with the notification requirements under CERCLA section 103
and EPCRA section 304 by approximately 1,290,000 hours over the ten
year period beginning in 2009 and associated costs by approximately
$60,800,000 over the same period. We estimate that this rule will also
reduce burden on government (including Federal, State and local
governments) for receipt and processing of the notifications under
CERCLA section 103 and EPCRA section 304 by approximately 161,000 hours
over the ten year period beginning in 2009 and associated costs by
approximately $8,110,000 over the same period. In evaluating the
potential burden and cost savings to those farms that would no longer
be required to make notifications under CERCLA section 103 and EPCRA
section 304 and for the government entities that are no longer required
to receive and process such notifications, we used the same universe as
used in the 2008 CAFO Rule (see 73 FR 70417, Nov. 20, 2008).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    Under the statutory and regulatory analyses of the Regulatory
Flexibility Act for the proposed rule, we concluded that EPA expects
the net reporting and recordkeeping burden associated with reporting
air releases of hazardous substances that meet or exceed their RQ from
animal waste at farms under CERCLA section 103 and EPCRA section 304 to
decrease. We stated that this reduction in burden will be realized by
businesses of all sizes. Although we concluded that the rule will
relieve regulatory burden for all affected small entities as the
statute requires, EPA requested comment on the potential impacts of the
proposed rule on small entities and on issues related to such impacts.
    One commenter explicitly concurred with EPA's analysis and
conclusion that the proposed rule will provide relief from regulatory
burden for small entities, stating that: ``Small farms should not be
affected even if the reporting requirements stay in place because these
farms do not generally have a large enough herd of animals to reach the
requisite levels of toxins.'' EPA appreciates the commenter's
perspective that small farms would probably not be affected by the
reporting requirements, even if we did not issue this administrative
reporting exemption.
    After considering the economic impacts of this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule will not impose any additional requirements on small entities.
Rather, this rulemaking will relieve regulatory burden because we are
eliminating the reporting requirement for releases of hazardous
substances to the air that meet or exceed their RQ from animal waste at
farms under the CERCLA section 103 notification requirements and for
those entities below the large CAFO threshold of animal species, as
defined under the NPDES program regulations, under the EPCRA section
304 notification requirements. We expect the net reporting and
recordkeeping burden associated with reporting air releases of
hazardous substances from animal waste at farms under CERCLA section
103 and EPCRA section 304 to decrease. This reduction in burden will be
realized by both small and large businesses. We have therefore
concluded that this final rule will relieve regulatory burden for all
affected small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private sector.
    This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. That is, the final
rule imposes no enforceable duty on any State, local or tribal
governments or the private sector; rather, this final rule will result
in burden reduction in the receipt of notifications under section 103
of CERCLA and for those entities below the large CAFO threshold of
animal species, as defined under the NPDES program regulations, under
section 304 of EPCRA notification requirements of the release to the
air of hazardous substances, primarily ammonia and hydrogen sulfide,
that meet or exceed their RQ from animal waste at farms.
    Additionally, EPA has determined that this final rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. This final rule reduces regulatory burden and the
private sector is not expected to incur costs exceeding $100 million.
Thus, the final rule is not subject to the requirements of Sections 202
and 205 of UMRA.

E. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
Policies that have federalism implications are defined in the Executive
Order to include regulations that 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.''
    This final rule 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,
as specified in Executive Order 13132. There are no State and local
government bodies that incur direct compliance costs by this final
rule. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)

    This action does not have tribal implications, as specified in
Executive Order 13175 (59 FR 22951, November 9, 2000). This rule does
not significantly or uniquely affect the communities of Indian tribal
governments, nor would it impose substantial direct compliance

[[Page 76959]]

costs on them. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045 (Protection of Children From Environmental
Health & Safety Risks)

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.

H. Executive Order 13211 (Actions That Significantly Affect Energy
Supply, Distribution, or Use)

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This final rule will reduce the burden
associated with the notification of releases to air of hazardous
substances that meet or exceed their RQ from animal waste at farms.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. As discussed in the Background section of the preamble for
this final rule, the requirement to notify the government under CERCLA
section 103 or EPCRA section 304 does not require the notifying entity
to take any specific action to address the release. Therefore, because
EPA has determined that a response action would be unlikely, EPA does
not believe that exempting these releases from CERCLA section 103
notification requirements or to a limited extent EPCRA section 304
emergency notification requirements will have a disproportionately high
and adverse human health or environmental effect on minority or low-
income populations, especially since the Agency is not limiting any of
its other authorities under CERCLA, such as CERCLA sections 104
(response authorities), 106 (abatement actions), 107 (liability), or
any other provisions of CERCLA or EPCRA. The Agency also retains its
authority to apply existing statutory provisions in its efforts to
prevent minority and or low-income communities from being subject to
disproportionately high and adverse impacts and environmental effects.
We therefore have determined that this final rule does not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective January 20, 2009.

List of Subjects

40 CFR Part 302

    Air pollution control, Chemicals, Hazardous substances, Hazardous
waste, Intergovernmental relations, Natural resources, Reporting and
recordkeeping requirements, Superfund, Water pollution control, Water
supply.

40 CFR Part 355

    Air pollution control, Chemicals, Disaster assistance, Hazardous
substances, Hazardous waste, Intergovernmental relations, Natural
resources, Penalties, Reporting and recordkeeping requirements,
Superfund, Water pollution control, Water supply.

    Dated: December 12, 2008.
Stephen L. Johnson,
Administrator.

• For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

• 1. The authority citation for part 302 continues to read as follows:

    Authority: 42 U.S.C. 9602, 9603, 9604; 33 U.S.C. 1321 and 1361.

• 2. Section 302.3 is amended by adding in alphabetical order the
definitions of ``Animal waste'' and ``Farm'' to read as follows:

Sec.  302.3  Definitions.

* * * * *
    Animal Waste means manure (feces, urine, and other excrement
produced by livestock), digestive emissions, and urea. The definition
includes animal waste when mixed or commingled with bedding, compost,
feed, soil and other typical materials found with animal waste.
* * * * *
    Farm means a facility on a tract of land devoted to the production
of crops or raising of animals, including fish, which produced and
sold, or normally would have produced and sold, $1,000 or more of
agricultural products during a year.
* * * * *

• 3. Section 302.6 is amended by adding paragraph (e)(3) to read as
follows:

Sec.  302.6  Notification requirements.

* * * * *
    (e) * * *

[[Page 76960]]

    (3) Releases to the air of any hazardous substance from animal
waste at farms.

PART 355--EMERGENCY PLANNING AND NOTIFICATION

• 4. The authority citation for part 355 continues to read as follows:

    Authority: 42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048
and 11049.

• 5. Section 355.31 is amended by adding paragraphs (g) and (h) to read
as follows:

Sec.  355.31  What types of releases are exempt from the emergency
release notification requirements of this subpart?

* * * * *
    (g) Any release to the air of a hazardous substance from animal
waste at farms that stable or confine fewer than the numbers of animal
specified in any of the following categories.
    (1) 700 mature dairy cows, whether milked or dry.
    (2) 1,000 veal calves.
    (3) 1,000 cattle other than mature dairy cows or veal calves.
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs.
    (4) 2,500 swine each weighing 55 pounds or more.
    (5) 10,000 swine each weighing less than 55 pounds.
    (6) 500 horses.
    (7) 10,000 sheep or lambs.
    (8) 55,000 turkeys.
    (9) 30,000 laying hens or broilers, if the farm uses a liquid
manure handling system.
    (10) 125,000 chickens (other than laying hens), if the farm uses
other than liquid manure handling system.
    (11) 82,000 laying hens, if the farm uses other than a liquid
manure handling system.
    (12) 30,000 ducks (if the farm uses other than a liquid manure
handling system).
    (13) 5,000 ducks (if the farm uses a liquid manure handling system).
    (h) Any release to the air of a hazardous substance from animal
waste at farms from animals that are not stabled or otherwise confined.

• 6. Section 355.61 is amended by adding in alphabetical order the
definitions of ``Animal waste'' and ``Farm'' to read as follows:

Sec.  355.61  How are key words in this part defined?

    Animal Waste means manure (feces, urine, and other excrement
produced by livestock), digestive emissions, and urea. The definition
includes animal waste when mixed or commingled with bedding, compost,
feed, soil and other typical materials found with animal waste.
* * * * *
    Farm means a facility on a tract of land devoted to the production
of crops or raising of animals, including fish, which produced and
sold, or normally would have produced and sold, $1,000 or more of
agricultural products during a year.
* * * * *
[FR Doc. E8-30003 Filed 12-17-08; 8:45 am]
BILLING CODE 6560-50-P
Notices For
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CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal Waste at Farms

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