CERCLA and EPCRA Reporting for Animal Agriculture

What are CERCLA and EPCRA?

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA; often referred to as “Superfund”) and the Emergency Planning and Community Right-to-Know Act (EPCRA) are federal regulatory acts that require reporting of actual and potential releases of ‘hazardous substances’ into the [water, air or soil] environment.  These acts came about as a result of some well-publicized environmental disasters that occurred in the absence of information being made available to local, state and federal authorities that may have helped avoid or reduce the negative environmental impacts.

While agriculture was not responsible for these reporting regulations being enacted, the language of the acts has left the door open to lawsuits questioning the prevailing interpretations that these acts do not apply to air emissions from normal farm activities and operations. Court decisions have expanded the application of these reporting requirements to air emissions from the handling and storage of manure on livestock and poultry operations. The current ruling requires reporting of ammonia and/or hydrogen sulfide emissions generated from handling and storage of manure that exceed 100 pounds released in a 24-hour period.

Do emissions from application of manure need to be reported?

No, farm owners/operators do not need to report emissions from the normal application of fertilizers (including normal application of manure as a fertilizer) or the handling, storage or application of pesticide products registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). However, under CERCLA section 103, any spills or accidents involving these substances must be immediately reported to the NRC when they meet or exceed the reportable quantity. From EPA Frequently Asked Questions website.

Do emissions from grazing livestock need to be reported?

It is unclear whether emissions from grazing operations need to be reported under CERCLA/EPCRA, since EPA does not address this in current reporting guidance. On the one hand, grazing does not involve handling or storage of manure. On the other, grazing operations that regularly collect and handle manure or confine animals in unvegetated areas for extended periods of time – and could thereby be classified as an ‘animal feeding operation’ by EPA for water quality purposes – could be viewed differently.

So, emissions from animal housing and manure storage need to be reported?

As it stands now, yes. However, this may change given activities in the works.

EPA interprets the phrase “used in routine agricultural operations” within EPCRA section 304 to include, for example, the handling and storage of waste for potential use as fertilizer. In creating the routine agricultural operation exception, Congress demonstrated its intent to treat farms differently than other types of facilities. EPA does not believe Congress intended the generation, handling or storage of animal waste to subject farms to reporting if they do not otherwise produce, use or store hazardous chemicals. Note: EPA intends to conduct a rulemaking on the interpretation of “used in routine agricultural operations” as it pertains to EPCRA reporting requirements. Under EPA’s interpretation, a farm where substances are used only in routine agricultural operations is not within the scope of EPCRA section 304; however, farms are still required to report releases of CERCLA hazardous substances under CERCLA 103. [This section taken directly from EPA EPCRA fact sheet, posted Oct. 30, 2017.]

Additionally, multiple efforts are underway to get congressional action on this matter. However, there is no way to know now what actions will be implemented, if any, or when that may occur.

Should I report?

The interpretation of the CERCLA and EPCRA Acts has recently changed. Since 2008, emission reporting for livestock operations was interpreted as applying only to large CAFO and under EPCRA only. In April 2017, the District of Columbia Federal Court of Appeals ruled that the statutes did not authorize EPA to exempt AFO from CERCLA, nor to limit EPCRA reporting requirements to large CAFO.

Our recommendation is that animal feeding operations should first check with your state livestock or poultry association for their current guidance on reporting.  If additional guidance is desired, it is recommended that you contact your state agency (e.g. environment, health, or agriculture) that is primarily responsible for environmental regulation of animal production. We anticipate changes occurring due to ongoing discussions at the time this article is authored, so follow-up contact may be desirable.

When does reporting need to occur?

On Friday, January 19, 2018, EPA filed a motion with the D.C. Circuit Court of Appeals to further delay issuance of the mandate. No reporting is required until the Court issues its order, or mandate, enforcing its decision to eliminate the reporting exemptions for farms. The resources below are being updated for accuracy. (Current as of January 31, 2018). Check on the EPA website for additional updates as this is a day-to-day situation.

Who Do I notify if I Need to Report?

There are three steps to the CERCLA reporting process as outlined by the EPA web site, and summarized below based on this guidance.

Step 1. Notify the NRC at 1-800-424-8802. Producers should inform the NRC representative that this is an “initial continuous release notification” and provide:

  • The name and location of the farm (city, town, state)
  • The name(s) of the hazardous substance(s) released

The NRC representative will provide an identification number (CR-ERNS) for your farm. You will have to use this number for any follow-up report or notification that is required under the continuous release reporting requirements.

Step 2. Submit an initial written notification to the EPA Regional Office for the area where the release occurs, within 30 days of the call to the NRC.

Farms can use this continuous release reporting form to provide the initial written notification. Please stay tuned for updated reporting forms specific for farm facility owners and operators.

Step 3. A one-time first anniversary follow-up report to the EPA Regional Office is due within 30 days of the first anniversary date of the initial written notification (i.e., the first continuous release report). The farm owner/operator must verify and update the information initially submitted for each of the hazardous substances reported to the NRC and to the EPA Regional Office. This follow-up report should be re-certified by the person in charge of the farm.

EPA’s guide Reporting Requirements for Continuous Releases of Hazardous Substances includes forms to assist you with developing written reports. The guide provides an overview of the information required for the initial and first anniversary follow-up reports.

Resources to Estimate Emissions and Send Reports for EPCRA

EPA identifies several resources and emission estimators in its guidance on reporting, and several resources are noted below. The official requirement for CERCLA and EPCRA, however, is for “good faith estimates” of emissions. It is important to note that the National Air Emissions Monitoring Study results were not presented as approved or prescribed for this purpose, and other means of estimating emissions from AFO have not been evaluated rigorously or approved as ‘accepted methods’ for estimating emissions. To avoid any such pretense, we are not advising use of a specific method for regulatory use, nor do we assert that a specific method is more valid than others. The fact that different resources provide differing ‘good faith emissions estimates’ and resulting animal numbers needed to reach reporting thresholds is an unavoidable consequence. Some producer associations and other groups are providing more specific guidance in this regard, but this should be taken as primarily a matter of convenience.

What is CERCLA?

The purpose of the Comprehensive Environmental Response, Compensation and Liability Act, CERCLA, or the Superfund Act is to address the physical and financial responsibilities associated with the release of hazardous materials into the environment. Some important concepts under this law involve the nature of what is released, the amount released, and the nature of the contamination caused by the release.

Under CERCLA, material is considered “hazardous” if it has been designated as such by other environmental laws, including the Clean Air Act. Therefore, there is some coordination in the approach to identifying the nature of what these laws regulate. Some items, such as petroleum and nuclear materials, are excluded from CERCLA consideration as hazardous substances although they are recognized as hazardous by other laws.

Another key concept in CERCLA is the term “release.” As you might expect, this term is broad in scope and includes any acts that spill, leak, pump, empty, discharge, dump, or dispose of these materials into the environment. Intent to accomplish these results is not part of the definition, which can mean that accidental as well as intentional acts are covered by the law. When a release occurs, the amount of material released is crucial to determining if the facility owner-operator has an obligation to report the release.

The EPA administrator determines a release quantity that triggers the report. This is the “reportable release quantity.” The reportable release quantity for ammonia, for example, is 100 pounds in a 24-hour period. Normal application of fertilizer, including manure applied as fertilizer, is considered a ‘routine agricultural operation’ and is not a reportable release. Releases that occur solely within a workplace and for which workers can assert claims against their employers are not covered events for CERCLA purposes.

Reference: Air Quality Regulation of Animal Agriculture by Ron Sheffield, Louisiana State University. January 2012.

What is EPCRA?

The Emergency Planning and Community Right-to-Know Act, EPCRA, was passed in 1986.  Congress recognized that hazardous materials are stored in many locations, and knowledge about what is stored where can help all of us make better decisions about the risks associated with living or working nearby.

As in the other examples, the identity of the material and the amount of it are important pieces of information. This act establishes a specific list of extremely hazardous materials and a threshold planning and reportable release quantity for each. The term “hazardous chemical” for purposes of this law excludes substances to the extent they are used in routine agricultural operations or as fertilizer held for sale by a retailer to the ultimate customer.

Reportable release quantities are considered to be the amount of material likely to cause harm if it is released. The threshold reportable release quantity for ammonia (or hydrogen sulfide) is 100 pounds per day. If the hazardous substance is released in an amount that is greater than the release reporting amount, then a release notification to state and local emergency planning committees must be made.

There is no reporting obligation for the field application of fertilizer, including manure used as fertilizer.

Reference: Air Quality Regulation of Animal Agriculture by Ron Sheffield, Louisiana State University. January 2012.