On June 13, 2019, EPA published a final rule that revises its release notification requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA).  Specifically, the revision exempts from EPCRA reporting air emissions from animal waste at farms.  While these air emissions are now exempt from reporting requirements, releases from animal waste to other water and land must still be reported.

The final rule’s purpose is to maintain consistency between the release reporting requirements under EPCRA and those under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  On March 23, 2018, President Trump signed into law the Fair Agricultural Reporting Method Act (FARM Act), which amended CERCLA § 103 to exempt “air emissions from animal waste (including decomposing animal waste) at a farm” from release notification requirements.  The FARM Act’s passage spurred some state legislatures to adopt similar exemptions.  For example, during its 2019 legislative session, the Georgia General Assembly passed HB 223, which exempted air emissions from animal waste at farms from state release notification requirements.

Although the FARM Act did not expressly address EPCRA, it had the effect—as EPA recognizes in the final rule—of exempting such emissions from EPCRA reporting obligations.  This is because EPCRA reporting obligations are largely dependent on whether a release is reportable under CERCLA.  The purpose of the final rule is therefore to clarify and make explicit that air emissions from animal waste at farms are also exempt from EPCRA reporting requirements.

To delineate the exemption’s scope, the final rule also adds “animal waste” and “farm” definitions to EPCRA’s regulations.  These definitions are consistent with those in CERCLA § 103.  Of note, the  “farm” definition does not exclude large CAFOs, meaning that those operations can utilize the reporting exemption.  A similar provision that was previously included in EPCRA regulations did not exempt air emissions from animal waste at these facilities.  The new exemption is therefore more widely applicable.

For more information on this rulemaking and related issues, please contact Greg Blount or Buck Dixon.