[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Proposed Rules]
[Pages 80222-80237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25270]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 355

[EPA-HQ-OLEM-2023-0142; FRL-10285-01-OLEM]
RIN 2050-AH31


Potential Future Regulation for Emergency Release Notification 
Requirements for Animal Waste Air Emissions Under the Emergency 
Planning and Community Right-to-Know Act (EPCRA)

AGENCY: Environmental Protection Agency (EPA).

[[Page 80223]]


ACTION: Advance Notice of Proposed Rulemaking (ANPRM).

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
soliciting information pertaining to and is requesting comments to 
assist in the potential development of regulations to reinstate the 
reporting of animal waste air emissions at farms under the Emergency 
Planning and Community Right-to-Know Act (EPCRA). The Agency is 
soliciting comments under five general categories: health impacts; 
implementation challenges; costs and benefits; small farm definition 
and potential reporting exemption; and national report on animal waste 
air emissions. Requiring reporting of animal waste air emissions may 
advance the community right-to-know aspect of EPCRA by providing the 
public with information that may impact their health and the 
environment. This information may advance EPA's environmental justice 
goals of increasing the awareness of the potential impact these 
emissions have on communities with environmental justice concerns. We 
solicit comments on all aspects of this potential action.

DATES: Comments must be received on or before February 15, 2024.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2023-0142, by any of the following methods:
    <bullet> Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
    <bullet> Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, EPA-HQ-OLEM-2023-0142 Docket, Mail Code 28221T, 1200 
Pennsylvania Avenue NW, Washington, DC 20460.
    <bullet> Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: William Noggle, U.S. Environmental 
Protection Agency, Office of Emergency Management, 1200 Pennsylvania 
Avenue NW, Washington, DC 20460; 202-566-1306; <a href="/cdn-cgi/l/email-protection#325c5d55555e571c455b5e5e5b535f725742531c555d44"><span class="__cf_email__" data-cfemail="ea84858d8d868fc49d838686838b87aa8f9a8bc48d859c">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Organization of this document. The 
information in this preamble is organized as follows:

I. Public Participation
    A. Written Comments
    B. Comment Headings
II. General Information
    A. Does this ANPRM apply to me?
    B. What is the purpose of this ANPRM?
    C. Legal authority
III. Background
    A. Overview
    B. Release Reporting Requirements Under CERCLA and EPCRA
    C. Continuous Release Reporting (CRR) Regulations
    D. Regulatory and Legal Background
    1. 2008 CERCLA/EPCRA Reporting Exemption Rule and Related 
Litigation
    2. 2018 FARM Act and Related 2018 CERCLA Rule
    3. 2019 EPCRA Rule and Related Litigation
    4. Executive Order 13990, January 20, 2021
IV. What information is EPA seeking?
    A. Health Impacts From Animal Waste Air Emissions
    B. Implementation Challenges
    1. National Air Emissions Monitoring Study (NAEMS)
    2. Emissions Calculator and Guidance on Estimating Amounts of 
Air Releases
    3. Grazing Operations
    4. Use of Continuous Release Reporting by Farms
    5. Citizen Suits
    6. Privacy Concerns
    7. EPCRA National Database
    C. Costs and Benefits
    1. Estimated Regulated Universe
    2. Burden Estimates
    3. Environmental Justice and Community Right-to-Know
    D. Small Farms
    1. Potential Reporting Exemption for ``Small Farms''
    2. Defining ``Small Farms''
    3. Animal Waste Management Methods for ``Small Farms''
    4. Health Impacts From ``Small Farms''
    5. State, Tribal, and Local Emergency Planners and Responders 
Use of ``Small Farm'' Animal Waste Air Emissions Information
    6. Adjusting the RQs of Ammonia and Hydrogen Sulfide for Animal 
Waste Air Emissions
    E. National Report on Animal Waste Emissions
V. Request for Comment and Additional Information
VI. What are the next steps EPA will take?
VII. Statutory and Executive Order Reviews

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2023-
0142, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit to 
EPA's docket at https://www.regulations.gov any information you 
consider to be Confidential Business Information (CBI), Proprietary 
Business Information (PBI), or other information whose disclosure is 
restricted by statute. Multimedia submissions (audio, video, etc.) must 
be accompanied by a written comment. The written comment is considered 
the official comment and should include discussion of all points you 
wish to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the 
full EPA public comment policy; information about CBI, PBI, or 
multimedia submissions; and general guidance on making effective 
comments.

B. Comment Headings

    Commenters should review the discussions in the preamble and are 
encouraged to comment on any matter that is addressed by this ANPRM. 
For comments submitted through postal mail or https://www.regulations.gov, EPA is requesting that commenters identify their 
comments on specific issues by using the appropriate number and comment 
headings listed below to make it simpler for the Agency to process your 
comment. If your comment covers multiple issues, please use all the 
heading numbers and names that relate to that comment. These are the 
comment headings for specific issues in this ANPRM:

#1--Health Impacts (see Section IV.A)
#2--Emissions Estimating Methodologies (see Section IV.B.1)
#3--2005 Compliance Agreement (see Section IV.B.1)
#4--Emissions Calculator--General (see Section IV.B.2)
#5--Emissions Calculator--Continuous Release Reporting (see Section 
IV.B.2)
#6--Accuracy of Reported Release Quantity (see Section IV.B.2)
#7--Turkey and Beef Contribution Factors (see Section IV.B.2)
#8--Estimating Emissions from Less Common Species (see Section 
IV.B.2)
#9--Estimating Emissions from Atypical Farming Operations (see 
Section IV.B.2)
#10--Cutoffs for Estimating (see Section IV.B.2)
#11--Other Guidance (see Section IV.B.2)
#12--Grazing Operations (see Section IV.B.3)
#13--Application of Continuous Release Reporting (see Section 
IV.B.4)

[[Page 80224]]

#14--Application of Upper and Lower Bounds (see Section IV.B.4)
#15--Exceptions to Continuous Release Reporting (see Section IV.B.4)
#16--Benefit of Continuous Release Reporting Data (see Section 
IV.B.4)
#17--Continuous Release Reporting--Other (see Section IV.B.4)
#18--Citizen Suits--Wholly Past Violations (see Section IV.B.5)
#19--Citizen Suit Cost and Benefits (see Section IV.B.5)
#20--Citizen Suit--Guidance (see Section IV.B.5)
#21--Citizen Suit--Other (see Section IV.B.5)
#22--Privacy Concerns (see Section IV.B.6)
#23--Privacy Concerns--Other (see Section IV.B.6)
#24--National EPCRA Database--General (see Section IV.B.7)
#25--National Database--Managing Right-to-Know Data (see Section 
IV.B.7)
#26--National Database--Managing Reports from Facilities (see 
Section IV.B.7)
#27--National Database--Animal Waste Air Emissions Reporting (see 
Section IV.B.7)
#28--National Database--Facility Benefits and Disadvantages (see 
Section IV.B.7)
#29--National Database--Managing FOIA Requests (see Section IV.B.7)
#30--National Database--Other (see Section IV.B.7)
#31--Regulated Universe--Number of Farms Reporting (see Section 
IV.C.1)
#32--Burden--Reporting Farms (see Section IV.C.2)
#33--Burden--Non-Reporting Farms (see Section IV.C.2)
#34--Burden--Small Farms (see Section IV.C.2)
#35--Burden--Qualitative Costs (see Section IV.C.2)
#36--Benefits--Environmental Justice (see Section IV.C.3)
#37--Indirect Benefits (see Section IV.C.3)
#38--Small Farm Exemption--General (see Section IV.D.1)
#39--Small Farm Exemption--Criteria (see Section IV.D.1)
#40--Small Farm Definition (see Section IV.D.2)
#41--Small Farm--Waste Handling (see Section IV.D.3)
#42--Small Farm--Health Impacts (see Section IV.D.4)
#43--State, Local, and Tribal Impacts (see Section IV.D.5)
#44--RQ Adjustment--General (see Section IV.D.6)
#45--Industry-Specific RQ Adjustment (see Section IV.D.6)
#46--National Report based on USDA or State Data (see Section IV.E)
#47--Other Technology for Estimating Air Releases (see Section IV.E)
#48--Other Solutions (see Section IV.E)
    Other Comments (Section V)

II. General Information

A. Does this ANPRM apply to me?

    A list of entities that could be affected by a potential future 
rulemaking include, but are not limited to:

      Table 1--Entities Potentially Affected by a Future Rulemaking
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        Type of entity         Examples of potentially affected entities
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Industry.....................  NAICS Code 112--Animal Production.
State and/or Local             NAICS Code 999200--State Government,
 Governments.                   excluding schools and hospitals.
                               NAICS Code 999300--Local Government,
                                excluding schools and hospitals.
                               State Emergency Response Commissions,
                                Tribal Emergency Response Commissions,
                                Tribal Emergency Planning Committees and
                                Local Emergency Planning Committees.
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NAICS = North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by a future 
rulemaking. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed in the FOR 
FURTHER INFORMATION CONTACT section.

B. What Is the purpose of this ANPRM?

    On June 13, 2019, the Agency published a final rule (84 FR 27533) 
which exempted reporting of animal waste air emissions under EPCRA for 
all farms, regardless of size. The Agency is reconsidering that final 
rule and through this ANRPM is seeking information that may assist with 
a potential future rulemaking requiring farms to report air emissions 
of extremely hazardous substances from animal waste under EPCRA.
    EPA is specifically soliciting information on the following five 
topics: (1) health impacts; (2) implementation challenges; (3) costs 
and benefits; (4) small farm definition and reporting exemption, and 
(5) a national report on animal waste air emissions. Information 
collected during the public comment period for this ANPRM will better 
inform the Agency on whether to pursue a proposed rule, as well as 
assist the Agency on how best to implement the reinstating of EPCRA 
reporting from farms, if such a rule is finalized. The Agency is also 
requesting comments and information on any other topics relevant to 
conducting a future rulemaking on EPCRA reporting of air emissions from 
animal waste on farms. The solicitation of information in this ANPRM 
does not necessarily mean any action on farms will occur.
    The solicitation of comment on these matters should not be read as 
EPA suggesting legal ambiguity in the relevant regulations or 
recognizing a particular interpretation by EPA of either EPCRA, the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980 (CERCLA), or their implementing regulations. For purposes of 
this comment solicitation, exploration of ways to further clarify 
particular aspects of the existing regulations should not be viewed as 
an indication that the existing language is inadequate, or in any way 
be seen to undermine the Agency's ability to enforce these regulations 
as written.

C. Legal authority

    This advanced notice of proposed rulemaking (ANPRM) is being issued 
under EPCRA, which was enacted as Title III of the Superfund Amendments 
and Reauthorization Act (SARA) of 1986 (Pub. L. 99-499). Any future 
rulemaking would fall under the authority of EPCRA section 304 (42 
U.S.C. 11004) and the Agency's general rulemaking authority under EPCRA 
section 328 (42 U.S.C. 11048).

III. Background

A. Overview

    Animal waste air emissions reporting from farms has been subject to 
a complex history of EPA regulatory actions, subsequent legal 
challenges, and Congressional legislation. Animal waste can generate 
potentially harmful air emissions of ammonia and hydrogen sulfide,\1\ 
which are listed as hazardous substances (HSs) under CERCLA and as 
extremely hazardous substances (EHSs) under EPCRA. The following 
sections provide a discussion of the regulatory reporting requirements 
and the history of prior regulatory and legal actions leading to this 
ANPRM.
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    \1\ Air emissions from animal wastes on farms are generally a 
result of decomposition of the animal waste.

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[[Page 80225]]

B. Release Reporting Requirements under CERCLA and EPCRA

    CERCLA and EPCRA are separate, but interrelated, environmental 
statutes that work together to provide notification of qualifying 
releases of HSs and EHSs to the appropriate government authorities. In 
general, CERCLA section 103 provides for notice to federal officials, 
whereas EPCRA section 304 provides for notice to state, tribal, and 
local officials. Section 103 of CERCLA requires the person in charge of 
a vessel or facility to immediately notify the National Response Center 
(NRC) \2\ when there is a release of an HS, as defined under CERCLA 
section 101(14), in an amount equal to or greater than the reportable 
quantity (RQ) for that substance within a 24-hour period. These 
requirements are codified in the CERCLA regulations at 40 CFR part 302. 
In addition to these CERCLA reporting requirements, EPCRA section 304 
generally requires owners or operators of certain facilities \3\ to 
immediately notify state, tribal and local authorities when there is a 
release of an EHS, as defined under EPCRA section 302, or of a CERCLA 
hazardous substance in an amount equal to or greater than the RQ for 
that substance within a 24-hour period. These requirements are codified 
in the EPCRA regulations at 40 CFR part 355 subpart C.
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    \2\ NRC is a part of the federally established National Response 
System and staffed 24 hours a day by the U.S. Coast Guard. It is the 
designated federal point of contact for reporting all oil, chemical, 
radiological, biological and etiological discharges into the 
environment, anywhere in the United States and its territories.
    \3\ The EPCRA definition of facility at 40 CFR 355.16: means all 
buildings, equipment, structures, and other stationary items that 
are located on a single site or on contiguous or adjacent sites and 
that are owned or operated by the same person (or by any person that 
controls, is controlled by, or under common control with, such 
person). Facility includes manmade structures, as well as all 
natural structures in which chemicals are purposefully placed or 
removed through human means such that it functions as a containment 
structure for human use. For purposes of emergency release 
notification, the term includes motor vehicles, rolling stock, and 
aircraft.
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    Notice given to the NRC under CERCLA serves to inform the federal 
government of a release so that federal personnel can evaluate the need 
for a response in accordance with the National Oil and Hazardous 
Substances Contingency Plan (NCP), the federal government's framework 
for responding to both oil discharges and hazardous substance releases. 
Related, notice under EPCRA is given to the State or Tribal Emergency 
Response Commission (SERC or TERC) \4\ for any state or tribal region 
likely to be affected by the release and to the community emergency 
coordinator for the Local or Tribal Emergency Planning Committee (LEPC 
or TEPC) \5\ for any area likely to be affected by the release so that 
state, tribal and local authorities have information to help protect 
the community. As stated in the title of the statute, EPCRA also has an 
important community right-to-know component that provides for public 
availability of release notifications pursuant to EPCRA section 324.
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    \4\ SERC is defined at 40 CFR 355.61 as: the State Emergency 
Response Commission for the state in which the facility is located 
except where the facility is located in Indian Country, in which 
case, SERC means the Emergency Response Commission for the tribe 
under whose jurisdiction the facility is located. In the absence of 
a SERC for a state or Indian Tribe, the governor or the chief 
executive officer of the tribe, respectively, shall be the SERC. 
Where there is a cooperative agreement between a state and a tribe, 
the SERC shall be the entity identified in the agreement.
    \5\ LEPC is defined at 40 CFR 355.61 as: the Local Emergency 
Planning Committee appointed by the State Emergency Response 
Commission. TEPCs are appointed by the TERCs.
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    Release reporting under EPCRA depends, in part, on whether 
reporting is required under CERCLA. Specifically, EPCRA section 304(a) 
provides for reporting under the following three release scenarios:
    1. EPCRA section 304(a)(1) requires notification if a release of an 
EPCRA EHS occurs from a facility at which a hazardous chemical is 
produced, used or stored, and such release requires a notification 
under CERCLA section 103(a).
    2. EPCRA section 304(a)(2) requires notification if a release of an 
EPCRA EHS occurs from a facility at which a hazardous chemical is 
produced, used or stored, and such release is not subject to the 
notification requirements under CERCLA section 103(a), but only if the 
release:
    [cir] Is not a federally permitted release as defined in CERCLA 
section 101(10),
    [cir] Is in an amount in excess of the reportable quantity as 
determined by EPA, and
    [cir] Occurs in a manner that would require notification under 
CERCLA section 103(a).
    3. EPCRA section 304(a)(3) requires notification if a release of a 
substance not designated as an EPCRA EHS occurs from a facility at 
which a hazardous chemical is produced, used or stored, and such 
release requires a notification under CERCLA section 103(a).

C. Continuous Release Reporting (CRR) Regulations

    There are situations where known or anticipated releases may be 
subject to significantly reduced reporting requirements, rather than 
the immediate or occurrence-based reporting of CERCLA section 103(a) 
and EPCRA section 304(a) as outlined above. CERCLA section 103(f) and 
its attendant regulations at 40 CFR 302.8 provide such relief for a 
release of a hazardous substance that is continuous and stable in 
quantity and rate. Similarly, EPA relied on EPCRA section 304(a)(2) to 
promulgate analogous reduced reporting regulations for continuous 
releases under EPCRA at 40 CFR 355.32. Those EPCRA regulations instruct 
a facility to rely on and follow, in part, the related CERCLA 
regulations at 40 CFR 302.8. As discussed further in this document, the 
continuous release reporting option is meant to save facilities and 
response authorities from the unnecessary burden of notification each 
time a repeated release--that is continuous and stable--occurs.
    Under CERCLA section 103(a), regulated entities are required to 
immediately report releases of CERCLA hazardous substances that meet or 
exceed the RQ threshold. In lieu of reporting for each release, 
however, certain continuous releases can qualify for reduced reporting 
(see 40 CFR 302.8), which allows the regulated entity to only provide 
the following:
    (1) Initial telephone notification made to the NRC;
    (2) Initial 30-day written notification to the EPA;
    (3) One-year follow-up written notification to the EPA;
    (4) Notification to the EPA of a change in the composition or 
source(s) of the release or in the other information submitted in the 
initial written notification; and
    (5) Notification to the NRC of any increase in the quantity of the 
hazardous substance being released during any 24-hour period, which 
represents a statistically significant increase (SSI).
    Reduced release reporting provisions are also available under 
EPCRA, which requires reporting of CERCLA hazardous substances and 
EPCRA extremely hazardous substances. Under the EPCRA continuous 
release reporting regulations codified at 40 CFR 355.32, which cross-
reference the CERCLA regulations at 40 CFR 302.8, facilities are 
required to report only items 1, 2, and 5 (from the list above) to 
their SERC or TERC and LEPC or TEPC. Any changes in source or 
composition (item 4) may be considered a new release, which is also 
required to be reported to the SERC or TERC and the LEPC or TEPC. A 
first anniversary report (item 3) is not required under EPCRA section 
304.

[[Page 80226]]

    CERCLA and the implementing regulations of both CERCLA and EPCRA 
\6\ and their implementing regulations define whether a release 
qualifies for continuous release reporting. The continuous release 
regulations in 40 CFR 302.8(d)(1) provide that a facility can establish 
a continuous release by ``[u]sing release data, engineering estimates, 
knowledge of operating procedures, or best professional judgment to 
establish the continuity and stability of the release.'' There is no 
specific requirement for release monitoring or collecting release data 
if a facility is relying on engineering estimates, best professional 
judgment, or knowledge of operations.
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    \6\ The EPCRA continuous release reporting regulation at 40 CFR 
355.32 cross-references the CERCLA definition of continuous releases 
at 40 CFR 302.8(b).
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    The definitions in the continuous release regulations in 40 CFR 
302.8(b) provide further assistance to determine what qualifies as a 
continuous release. There, a continuous release is defined as a release 
``that occurs without interruption or abatement or that is routine, 
anticipated, and intermittent and incidental to normal operations or 
treatment processes.'' A routine release is defined as a release ``that 
occurs during normal operating procedures or processes.'' And the 
phrase ``stable in quantity and rate'' is defined as a release ``that 
is predictable and regular in amount and rate of emission.''
    The continuous release regulations also include reporting the 
normal range of releases defined in 40 CFR 302.8 as ``all releases (in 
pounds or kilograms) of a hazardous substance reported or occurring 
over any 24-hour period under normal operating conditions during the 
preceding year.'' The upper and lower bounds of the normal range of the 
release are reported in the 30-day written report under EPCRA.

D. Regulatory and Legal Background

    As previously noted, the history of release reporting for air 
emissions from animal waste at farms is long and complex. The following 
summary of events leading to this ANPRM is not meant to be exhaustive. 
Publicly available documents cited below and included in the docket 
provide further background information.
1. 2008 CERCLA/EPCRA Reporting Exemption Rule and Related Litigation
    Prior to 2008, all farms were subject to release reporting for air 
emissions under both CERCLA and EPCRA but were eligible for reduced 
continuous release reporting. In December 2008, EPA published a final 
rule that exempted all farms from reporting animal waste air emissions 
under CERCLA and exempted small and medium concentrated animal feeding 
operations (CAFOs) \7\ from reporting such emissions under EPCRA (73 FR 
76948, December 18, 2008). Large CAFOs with emissions equal to or 
exceeding an RQ were still required to report under EPCRA with the 
continuous release reporting option, as applicable. EPA intended the 
2008 rulemaking to reduce the reporting burden on farms and emergency 
response agencies.
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    \7\ EPA defined different sizes of farms using the National 
Pollution Discharge Elimination System (NPDES) size definitions for 
concentrated animal feeding operations (CAFOs). A table of EPA's 
NPDES regulatory definitions of large, medium, and small CAFOs can 
be viewed here: https://www3.epa.gov/npdes/pubs/sector_table.pdf.
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    In April 2017, the 2008 rule was vacated by the United States Court 
of Appeals for the District of Columbia Circuit as arbitrary and 
capricious. See Waterkeeper Alliance, et al. v. EPA, 853 F.3d 527 (D.C. 
Cir. 2017). In so holding, the court acknowledged the potential health 
risks of some animal waste air emissions and found that reporting could 
be useful to local and state authorities who may need to investigate or 
respond to these releases. The effect of the court's vacatur was to 
reinstate reporting requirements for air emissions from animal waste at 
all farms under CERCLA and EPCRA. The court delayed the effective date 
of its ruling until May 2, 2018, to grant EPA time to develop guidance 
to assist farms with meeting their reporting obligations.
2. 2018 FARM Act and Related 2018 CERCLA Rule
    On March 23, 2018, President Trump signed into law the Consolidated 
Appropriations Act, 2018 (``Omnibus Bill''). Title XI of the Omnibus 
Bill is entitled the ``Fair Agricultural Reporting Method Act'' or the 
``FARM Act.'' See Fair Agricultural Reporting Method Act, Public Law 
115-141, sections 1101-1103 (2018). The FARM Act amended CERCLA section 
103 to expressly exempt the reporting of air emissions from animal 
waste (including decomposing animal waste) at a farm. As a result, in 
August 2018, the Agency published a final rule to amend the CERCLA 
regulations at 40 CFR part 302 by adding the reporting exemption for 
air emissions from animal waste at farms and adding definitions of 
``animal waste'' and ``farm'' from the FARM Act (83 FR 37444, August 1, 
2018).
    The FARM Act expressly exempted all farms from reporting air 
emissions from animal waste under CERCLA but did not amend EPCRA in any 
way.
3. 2019 EPCRA Rule and Related Litigation
    EPA proposed a rule on November 14, 2018, to exempt all farms from 
reporting air emissions from animal waste under EPCRA (83 FR 56791, 
November 14, 2018). EPA received considerable comments from the public 
both supporting and opposing the proposed rule. Supporters largely 
agreed with EPA's interpretation of the statutes and expressed concerns 
over the burden that would be placed on farms if animal waste emission 
reporting was not exempt under EPCRA. Opposing commenters expressed 
concerns over the environmental and health impacts of animal waste air 
emissions and the public's right-to-know about these emissions. They 
argued that EPA's interpretation of the statute in support of the 
proposed rule was unlawful.
    After consideration of all these comments, EPA finalized the rule 
to promulgate the EPCRA exemption on June 13, 2019 (84 FR 27533) (the 
June 2019 EPCRA Rule).
    On July 9, 2019, several environmental groups, including the Rural 
Empowerment Association for Community Help (REACH), the Center for 
Biological Diversity, the Environmental Integrity Project, and the 
Waterkeeper Alliance, amended an existing complaint to challenge the 
final rule in the U.S. District Court for the District of Columbia. See 
REACH v. EPA, No. 1:18-CV-02260 (Sept. 28, 2018) (the REACH case). A 
number of agricultural trade associations joined the action as 
intervenors, including the National Cattlemen's Beef Association, the 
National Pork Producers Council, and the American Farm Bureau 
Federation.
4. Executive Order 13990, January 20, 2021
    On January 20, 2021, shortly after the change in administration, 
President Biden issued Executive Order (E.O.) 13990, which states that 
it is the policy of the new administration: ``to listen to the science; 
to improve public health and protect our environment; to ensure access 
to clean air and water; to limit exposure to dangerous chemicals and 
pesticides; to hold polluters accountable, including those who 
disproportionately harm communities of color and low-income 
communities; to reduce greenhouse gas emissions; to bolster resilience 
to the impacts of climate change; to restore and expand our national 
treasures and monuments; and to prioritize both environmental

[[Page 80227]]

justice and the creation of the well-paying union jobs necessary to 
deliver on these goals.'' (86 FR 7037, January 25, 2021).
    E.O. 13990 further directed federal agencies to ``immediately 
review and, as appropriate and consistent with applicable law, take 
action to address the promulgation of Federal regulations and other 
actions during the 4 years prior to the E.O. that conflict with these 
important national objectives, and to immediately commence work to 
confront the climate crisis.'' See Id. In keeping with E.O. 13990, EPA 
moved the court in the REACH case to remand the June 2019 EPCRA Rule 
back to the EPA on November 23, 2021. The district court granted the 
remand on February 14, 2022 ``without vacatur,'' meaning the EPCRA 
exemption for farms remains in place while EPA reconsiders the rule.

IV. What information is EPA seeking?

    EPA is seeking comments and data that will better inform the Agency 
on whether to pursue a proposed rule, as well as assist the Agency on 
how best to implement the reinstating of EPCRA reporting from farms, if 
such a rule is finalized. The Agency is specifically soliciting 
information on the following five topics: (1) health impacts; (2) 
implementation challenges; (3) costs and benefits; (4) small farm 
definition and potential reporting exemption, and (5) a national report 
on animal waste air emissions.

A. Health Impacts From Animal Waste Air Emissions

    EPA reviewed literature about health impacts to communities in the 
vicinity of farms with animal waste. A summary of the health impact 
studies can be found in the Technical Background Document (TBD) in the 
docket for this action. The literature review of 21 studies reporting 
on health effects associated with air releases from Animal Feeding 
Operations (AFOs) add to a body of evidence that exposure to AFOs is 
associated with respiratory health effects, mortality, odor annoyance, 
gastrointestinal illness, and other health effects. They also reveal 
that populations located in close proximity to animal operations are at 
a greater risk for adverse health effects compared to populations 
located farther away or residing in areas without AFOs. The literature 
search identified several studies showing a correlation between 
proximity and exposure to animal waste and respiratory health effects, 
including increased likelihood of asthma in both adults and children 
and reduced lung function. Some of the studies also identified exposure 
to animal waste as being correlated with mortality rates, 
gastrointestinal illness, and other human health effects. The size and 
type of operation, number of animals, and species may affect the 
intensity of animal waste exposure. The studies also concluded that 
populations located in closer proximity to animal farm operations are 
at an increased risk for adverse health effects when compared to 
populations located farther away or residing in areas without animal 
farm operations. The studies also provided specific cases where 
communities with environmental justice concerns, including those 
comprising people of color, low-income individuals, and children in 
specific geographic locations of the country are disproportionately 
located near animal feeding operations. The location of these 
populations has the potential to result in significant health impacts 
on the members of these communities.
Request for Information
    EPA requests the following information relating to health impacts:
    #1--Health Impacts: The Agency is soliciting comment on the 
literature search provided in the TBD and requesting any additional 
relevant literature or other information on health impacts from animal 
waste air emissions, including any indirect health impacts. The Agency 
is also requesting any information on health impacts to communities 
with environmental justice concerns.

B. Implementation Challenges

    If the Agency reinstates EPCRA reporting, EPA anticipates a certain 
level of uncertainty with determining or calculating the amount of 
animal waste air emissions of ammonia and hydrogen sulfide to trigger 
reporting. In the subsequent sections, the Agency is soliciting 
information on estimating amounts of air emissions, as well as other 
implementation challenges such as whether the continuous release 
reporting requirements are applicable to farm operations and how the 
influx of release reporting data could be managed.
1. National Air Emissions Monitoring Study (NAEMS)
    EPA's Office of Air and Radiation (OAR) is developing 
methodologies, based on data collected under the National Air Emissions 
Monitoring Study (NAEMS), to estimate air emissions of ammonia, 
hydrogen sulfide, particulate matter (PM), and volatile organic 
compounds (VOCs) from animal waste from poultry (egg-layers and chicken 
broilers), swine, and dairy livestock. The NAEMS originated in 2005 
from the EPA and agriculture industry's understanding of the difficulty 
in estimating air emissions from animal feeding operations. To address 
the issue, the Agency entered into the Air Consent Agreement with the 
animal production industry, which included approximately 2,600 entities 
covering about 14,000 farms. As part of the agreement, EPA agreed not 
to pursue enforcement actions for certain past violations of the Clean 
Air Act, CERCLA, and EPCRA during development of the methodologies. The 
methodologies, based on the NAEMS data, are being developed for poultry 
(egg-layers and chicken broilers), swine, and dairy operations 
utilizing air monitoring data from animal operations and statistical 
analyses. The initial methodologies were released to the public 
starting in 2020. EPA anticipates holding a formal public comment 
period starting in late 2023 and finalizing the methods by spring 2024. 
In the existing draft form, the methods use a set of variables easily 
accessible to estimate emissions. These variables include type and 
number of animals at the farm; beginning and ending animal weight; 
waste management method(s) and if applicable; the housing type and 
number of days without animals in the barn or house; and ambient 
relative humidity, ambient temperature, and wind speed. Additional 
information can be found at https://www.epa.gov/afos-air/national-air-emissions-monitoring-study or in docket EPA-HQ-OAR-2004-0237.
    The Agency acknowledges there are livestock types, such as turkey 
and beef, and operational configurations that are not covered under the 
NAEMS methodologies. The subsequent section, IV.B.2, solicits comment 
and information on these gaps and how to address them, if EPCRA 
reporting is reinstated.
Request for Information
    EPA requests the following information relating to EPA's emissions 
estimating methodologies developed using data collected as part of the 
NAEMS:
    #2--Emissions Estimating Methodologies: EPA requests comments on 
the applicability of the NAEMS methodologies for estimating air 
emissions from animal waste for farm types not included as part of 
NAEMS for a potential future reporting under EPCRA. For instance, data 
were not collected from cage-free layer facilities and recent trends in 
the industry have been toward more eggs being produced from cage-free 
facilities. As part of the

[[Page 80228]]

NAEMS program, emissions data were collected from high-rise and belt-
battery layer facilities which may have different emissions than a 
cage-free facility.
    #3--2005 Compliance Agreement Reporting: If EPA requires reporting 
under EPCRA, would there be confusion around the timing of reporting 
for participants of the 2005 compliance agreement? If the Agency were 
to pursue and finalize a rulemaking to reinstate EPCRA reporting for 
animal waste air emissions prior to the NAEMS methods being finalized, 
then NAEMS Agreement participants would not have to report until the 
timeframes triggered by publication of the final NAEMS methodologies. 
This point may be moot since the NAEMS methods are scheduled to be 
finalized well in advance of the time needed for a possible rulemaking 
to reinstate EPCRA reporting. The Agency is soliciting comment on any 
outreach that EPA should conduct to avoid potential confusion.
2. Emissions Calculator and Guidance on Estimating Amounts of Air 
Releases
    If EPA moves forward with reinstating the EPCRA reporting 
requirement for farms, the Agency may need to develop tools and 
guidance to minimize the reporting burden.
    EPA could develop a calculator for farms to estimate their animal 
waste air emissions. The web-based emissions calculator would use the 
estimation methods developed with the NAEMS data, enabling farms to 
input a limited number of variables to estimate the amount of ammonia 
and hydrogen sulfide air releases from animal waste. The input 
variables would be information that farmers are assumed to already 
know, such as location of the farm, species of animals at the farm, 
species population size, waste management method(s) and if applicable, 
the housing type, number of days without animals in the barn or house 
and beginning and ending animal weight. The emissions calculator could 
use the farm location (e.g., county or ZIP code) to obtain 
meteorological data (e.g., ambient relative humidity, ambient 
temperature, wind speed). The emissions calculator would perform the 
calculations using the formulas derived from the NAEMS data, which 
provide an estimate of release amount per day in pounds. This screening 
step would identify whether a farm meets or exceeds the reportable 
quantity and therefore, be subject to reporting under EPCRA. If the 
emissions calculator shows that the reportable quantity is exceeded, 
the farm may be able to meet the reporting requirements with continuous 
release reporting. The applicable information in the emissions 
calculator could then auto-populate an EPA webform for the continuous 
release report form. Finally, instructions with the webform could 
instruct the farmer on how to submit the continuous release report to 
their appropriate state, tribal and local agencies responsible for 
collecting EPCRA release reports. The Agency recognizes that the NAEMS 
data does not cover all livestock species or operational 
configurations. For example, common species such as turkey and beef are 
not included in the Air Consent Agreement, nor are less common 
livestock species, such as goat, llama, and aquaculture. If the Agency 
pursues a rule to require EPCRA reporting, the Agency does not want 
farmers to struggle with estimating air emissions, thus the Agency is 
soliciting input and recommendations for tools and/or guidance the 
Agency could develop to assist farms in estimating air emissions for 
livestock and operational configurations not covered under the NAEMS 
methods.
    Finally, if farms are required to report under EPCRA, ideally, EPA 
would provide a mechanism or threshold upfront to farms as to whether 
an estimate of their emissions is even necessary (i.e., does a farm 
have enough livestock to even come close to the reportable quantity?). 
EPA has considered developing guidance on a minimum number of animals, 
where under typical farm operations, any number of livestock below the 
cutoff could not exceed the 100 pounds of air emissions for either 
hydrogen sulfide or ammonia. If possible, these types of cutoffs could 
be provided on EPA's website and on the front end of the emissions 
calculator, so that farms with numbers of animals below the cutoff, can 
quickly determine they would not need to report. EPA understands this 
may not provide the level of regulatory certainty to assure farmers 
that they are complying with the regulations. The Agency seeks input on 
whether this type of cutoff would be helpful and what unforeseen issues 
with providing such cutoffs through guidance and outreach materials 
could arise. Of note, the Agency contemplated including such a cutoff 
in regulatory text for a potential future rule. Under the prior 2008 
rulemaking (73 FR 76948), only large CAFOs were required to report 
under EPCRA, where the definition of a large CAFO (by number of 
livestock) provided regulatory certainty.
Request for Information
    EPA requests the following information relating to a potential 
emissions calculator:
    #4--Emissions Calculator--General: EPA requests comments on the 
utility and function of an emissions calculator. Should EPA create a 
webform tool that can calculate an estimate of air emissions from 
animal wastes on farms? The Agency has a draft design of an emissions 
calculator included in an appendix of the TBD to provide readers with 
the look and feel of the tool. Separately, is there a need for EPA to 
create a paper form or phone hotline to assist users that do not have 
access to the internet? Are there other, more efficient, ways to 
provide air emission estimates to farms other than through a webform 
calculator?
    #5--Emissions Calculator--Continuous Release Reporting: If the 
emissions calculator provides an estimate that exceeds the reportable 
quantity, should farmers (users) be routed from the emissions 
calculator to the continuous release reporting form and the 
instructions for submission to the specific state, tribal and local 
agencies? The Agency is soliciting comment on this approach in general, 
and on whether this is the most efficient process EPA can establish for 
reporting animal waste air emissions under EPCRA (i.e., Would farms 
find this helpful? Are there any other steps in the process which could 
be streamlined by EPA and/or state, tribal and local agencies? Are 
there alternatives that may be more efficient?).
    #6--Accuracy of Reported Release Quantity: Should the calculator 
include a disclaimer that the emissions are estimates of uncontrolled 
emissions, and may not reflect actual emissions due to differences in 
each farm operation and applications of controls? The Agency solicits 
comment on adding a disclaimer and any other guidance that may be 
needed.
    #7--Turkey and Beef Contribution Factors: Turkey and beef are two 
of the most prevalent livestock species not included in the Air Consent 
Agreement. If EPCRA reporting is reinstated, the Agency would consider 
publishing contribution factors for turkey and beef livestock. The 
contribution factor would be a quantity of ammonia and hydrogen sulfide 
emitted per animal. The farmer would only need to conduct a 
``bookkeeping exercise,'' of multiplying the number of livestock by the 
contribution factor, which would provide the air emission estimate. 
Potential contribution factors for turkey and beef are in an appendix 
in the TBD.

[[Page 80229]]

The Agency is soliciting comment and information on whether developing 
contribution factors would be useful and appropriate for turkey and 
beef. The Agency is also soliciting any information that could be used 
to develop contribution factors for turkey and beef. See the TBD for 
the Agency's preliminary review into turkey and beef emissions studies. 
The contribution factors and literature search in the TBD are only 
drafts to give the reader an estimate of what a turkey and beef 
contribution factor may be, as well as show the relevant literature EPA 
would review to develop contribution factors.
    #8--Estimating Emissions from Less Common Species: The Agency is 
requesting information that could be used in development of 
contribution factors for less common livestock which are not included 
in the NAEMS. Additionally, if the Agency reinstates EPCRA reporting, 
would it be appropriate for the Agency to devote time and resources to 
develop contribution factors for all conceivable farming operations? 
The Agency has included some preliminary draft cutoffs in the TBD for 
estimating the initial burden to all farms when determining if they 
will exceed the RQs.
    #9--Estimating Emissions from Atypical Farming Operations: There 
may be farms unable to use the NAEMS methods because they do not apply 
to their specific operation configuration. For example, cage-free egg 
laying houses were not prevalent in the industry when the NAEMS was 
conducted, and no data were collected to support method development. In 
those cases, farms would need to use other information to estimate the 
air emissions, if EPCRA reporting is reinstated. For examples of 
operations that are included in the emissions calculator, see the 
screenshots of a mock-up of the calculator in the appendices of the 
TBD. EPA requests comment on operational configuration scenarios not 
covered by the NAEMS methodologies, and subsequently not covered by the 
emissions calculator, that should be included in guidance to assist the 
regulated community. EPA requests comment on operational configurations 
not covered by the methodologies developed from NAEMS data and requests 
any information that could be used to develop tools or guidance on how 
to calculate emissions from atypical farming operations.
    #10--Cutoffs for Estimating: Should EPA develop guidance with de 
minimis thresholds which would make clear that a farm with livestock 
inventory below the threshold could not conceivably produce over 100 
pounds of ammonia or hydrogen sulfide in a 24-hour period, and thus 
would not have to estimate air emissions or have to report under EPCRA? 
The Agency is requesting any information that could be used to develop 
thresholds. Are there farming operations that could be exceptions to 
such a threshold where very few animals are on the farm, but the 
farming operation would have enough manure on site to emit over 100 
pounds of ammonia or hydrogen sulfide in a 24-hour period?
    #11--Other Guidance: EPA solicits comment on additional 
implementation information EPA should consider in development of 
guidance, and other implementation tools EPA could provide to farms to 
reduce reporting burden and costs.
3. Grazing Operations
    EPA is also seeking comment on having emissions from animals living 
and being raised in grazing or pasture situations covered by a 
potential future rule. A common example is beef cattle that are raised 
grazing or pastured over large areas of land for a period of time in 
their growth cycle. The animal waste generated while grazing or 
pastured is generally widely dispersed across the landscape and is not 
in a concentrated area. The beef cattle can then be transferred from 
the grazing or pastured areas to feedlots or other concentrated feeding 
operations to complete their life cycle. Other species similarly are 
raised grazing or pastured for a period of their life cycle.
    If reporting is reinstated under a potential future rule, only 
farming operations that are defined as a ``facility'' would need to 
report. Under EPCRA section 329 (Definitions), the term ``facility'' 
means ``all buildings, equipment, structures, and other stationary 
items which are located on a single site or on contiguous or adjacent 
sites . . .'' The term ``facility'' is further defined in the EPCRA 
regulations at 40 CFR 355.61 to include ``manmade structures, as well 
as all natural structures in which chemicals are purposefully placed or 
removed through human means such that it functions as a containment 
structure for human use.'' In general, the Agency does not currently 
believe grazing operations fall under the definition of ``facility,'' 
unless the manure is collected and managed.
Request for Information
    EPA requests the following information relating to grazing 
operations:
    #12--Grazing Operations: EPA seeks comment on whether the Agency's 
interpretation of ``facility'' relating to grazing operations is 
correct and appropriate. The Agency also seeks information on whether 
clarifications of the applicability of the regulations to other farming 
operations is needed.
4. Use of Continuous Release Reporting by Farms
    The animal waste that farms handle or manage as part of their 
normal operations of raising animals may have regular air emissions 
which could fall within the scope of continuous release reporting (see 
section III.C. for an overview of continuous release reporting). As 
mentioned previously, continuous release reporting under EPCRA 
encompasses the following three requirements, found at 40 CFR 355.32: 
(1) Initial telephone notification made to the LEPC and SERC; (2) 
Initial 30-day written notification to the LEPC and SERC; and (3) 
notification to the LEPC and SERC of any increase in the quantity of 
the hazardous substance being released during any 24-hour period, which 
represents a statistically significant increase (SSI). The 30-day 
written notification is submitted using a range for the quantity 
released, and an SSI is anything that exceeds the upper bound of the 
range identified in the initial 30-day notification. Of note, there are 
no requirements for updating a continuous release report if the release 
decreases below the lower bound provided in the report, and there are 
no federal requirements for reporting when a continuous release has 
ceased.\8\ Furthermore, the initial notification does not require 
monitoring data to support the upper and lower bounds of the quantity 
released; instead, the regulations allow for ``using release data, 
engineering estimates, knowledge of operating procedures, or best 
professional judgment'' (see 40 CFR 355.32(a) via 40 CFR 302.8(d)(1)). 
Finally, a continuous release is defined as ``a release that occurs 
without interruption or abatement or that is routine, anticipated, and 
intermittent and incidental to normal operations or treatment 
processes,'' (see 40 CFR 302.8(b); emphasis added).
---------------------------------------------------------------------------

    \8\ Note: State, tribal, and local EPCRA implementing agencies 
may have additional reporting requirements.
---------------------------------------------------------------------------

Request for Information
    EPA requests the following information relating to continuous 
release reporting:
    #13--Application of Continuous Release Reporting: The Agency is 
soliciting comment on the appropriateness of defining all air releases 
from animal waste on farms as

[[Page 80230]]

continuous releases, because they are routine, anticipated, and 
intermittent and incidental to normal operations.
    #14--Application of Upper and Lower Bounds: The Agency is 
soliciting comment on allowing farms to apply upper and lower bounds on 
their continuous release reports to estimate the highest or lowest 
quantity released at any point during the year, regardless of seasonal 
fluctuations in farming operations.
    #15--Exceptions to Continuous Release Reporting: Given the 
flexibility of the EPCRA continuous release reporting requirements, the 
Agency is soliciting comment on whether there are scenarios for which 
releases from animal waste at farms could not be covered under 
continuous release reporting. If that is the case, the Agency requests 
any information on such farming operations, so the Agency can account 
for the burden these operations would incur from episodic release 
reporting, instead of continuous release reporting.
    #16--Benefits and Costs of Continuous Release Reporting Data: The 
Agency is soliciting comment and supporting data on the usefulness of 
continuous release reporting data to the surrounding communities and 
SERCs and LEPCs (i.e., If the report is submitted with a large range 
for the quantity released, would that help the public understand what's 
in their community?).
    #17--Continuous Release Reporting--Other: The Agency is soliciting 
information and comment on any other issue relating to the application 
of continuous release reporting by farms subject to a potential future 
rule.
5. Citizen Suits
    Reinstating animal waste air emissions reporting requirements would 
create potential liability for farms that meet or exceed the RQ, but 
fail to report, under the citizen suit provisions of EPCRA. Under EPCRA 
section 326(a)(1)(A)(i), a citizen may file suit against an owner or 
operator of a facility, including a farm, for failing to submit the 
follow-up emergency notice of release required by EPCRA section 
304(c).\9\ Before filing a citizen suit, the citizen must provide 60 
days' notice of the alleged violation to the facility, the state, and 
EPA, as required by EPCRA section 326(d)(1). If the alleged violator 
files the missing report in that time (i.e., the violation is ``wholly 
past''), EPA believes an actual lawsuit would be unlikely. Pursuant to 
the Supreme Court decision in Steel Co. v. Citizens for a Better 
Environment, 523 U.S. 83 (1998), citizens may not be able to 
demonstrate that they have standing to bring a suit for wholly past 
violations. In practice, if a facility files a release report within 60 
days of receiving notice of a citizen suit, the suit may be dismissed 
with no award of attorney's fees or investigative costs. A suit also 
may not be brought if EPA has ``commenced and is diligently pursuing'' 
an action to enforce a requirement or impose a civil penalty under 
EPCRA.
---------------------------------------------------------------------------

    \9\ When using continuous release reporting, the 30-day initial 
written notification under 40 CFR 355.32(a), further specified under 
40 CFR 302.8(e), is considered the follow-up emergency notice under 
EPCRA section 304(c).
---------------------------------------------------------------------------

    The Agency does not have a list of past citizen suits, but believes 
they are infrequent and not focused on small farms. EPA requests 
comment on potential citizen suit issues and concerns that are related 
to non-reporting farms. If there are other citizen suit considerations, 
EPA requests comment on these issues and concerns, including benefits 
of this potential remedy. These comments may assist in the development 
of guidance and outreach information to be shared with the regulated 
community as part of future compliance assistance if reporting is 
reinstated.
    Comments received on the 2018 proposed rule included a concern of 
liabilities that reporting requirements could create for farmers 
because the information is ``inherently imprecise and therefore subject 
to dispute.'' \10\ The Agency notes that under EPCRA section 
326(a)(1)(A)(i), a citizen suit can be brought against an owner or 
operator for failing to submit the follow-up emergency notice of 
release required by EPCRA section 304(c). That notice includes an 
``estimate of the quantity of any such substance that was released . . 
.'' (see EPCRA section 304(b)(2)(C)).
---------------------------------------------------------------------------

    \10\ See comment with docket ID EPA-HQ-OLEM-2018-0318-0224.
---------------------------------------------------------------------------

Request for Information
    EPA requests the following information relating to potential 
impacts on farms from citizen suits:
    #18--Citizen Suits--Wholly Past Violations: Given that EPCRA 
requires 60 days' notice before filing a citizen suit, and the decision 
in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), 
could citizen suits create more than a minimal burden on farms? Given 
that only an estimate needs to be provided to fulfill the requirements, 
the Agency is also soliciting comment and information on the potential 
for additional citizen suits based on the accuracy of the reporting 
estimate.
    #19--Citizen Suit Benefits and Costs: What are the potential costs 
and liabilities of EPCRA citizen suits for non-reporting farms if 
reporting is reinstated? The Agency is also soliciting any information 
on realized benefits of a citizen suit being filed against a farm. 
Finally, the Agency is soliciting information on the frequency and 
number of previous citizen suits for failing to submit the follow-up 
emergency notice of release required by EPCRA section 304(c), as well 
as the frequency and number of 60-day notices provided to farms in 
advance of the citizen suit. We realize that EPCRA reporting for animal 
waste air emissions at farms is not currently required, however, 
reporting was required by large CAFOs prior to 2019, which is the time 
period for which EPA is seeking information.
    #20--Citizen Suit--Guidance: If the Agency develops guidance on 
citizen suits, what information should the guidance include?
    #21--Citizen Suit--Other: The Agency is soliciting information and 
comment on any other issues related to citizen suits in the context of 
a potential future rulemaking to reinstate EPCRA reporting for farms.
6. Privacy Concerns
    If reporting is reinstated in a future rulemaking for farms, the 
public may seek access to the report under the right-to-know provision 
in EPCRA section 324(a). EPA understands there may be privacy concerns 
by the farmers when their personal residence is the same as the address 
for the farm, in which case the submitted reports may contain personal 
information that was previously unavailable from any other source to 
the public. The Agency expects that most small farms will not meet the 
applicable release reporting thresholds and will therefore fall outside 
the scope of any EPCRA reporting requirement entirely; however, the 
Agency still appreciates the concern for the small farms that would 
need to report.
Request for Information
    #22--Privacy Concerns: EPA seeks comment, generally, on the privacy 
concerns of farmers who would be required to report animal waste air 
emissions. The Agency is also seeking creative solutions that could 
provide communities with information on air emissions from a farm 
without disclosing the location (i.e., personal address) of a ``small'' 
farm.
    #23--Privacy Concerns--Other: The Agency is soliciting information 
and comment on any other issues related to

[[Page 80231]]

privacy concerns in the context of a potential future rulemaking to 
reinstate EPCRA reporting for farms.
7. EPCRA National Database
    Under EPCRA's statutory authority (42 U.S.C.11004), EPCRA emergency 
release notifications (Section 304; 40 CFR 355.30) are submitted to the 
SERCs or TERCs and LEPCs or TEPCs, but not to the EPA or another 
federal agency. EPA recognizes that reinstatement of EPCRA animal waste 
air emissions reporting will increase the number of release reports 
submitted to state, tribal, and local agencies (the implementing 
agencies). Under the existing authorities, the implementing agencies 
will have the responsibility of receiving and managing the reports and 
making the information publicly available as part of the EPCRA right-
to-know provisions.
    The EPA requests comment and information on creating an EPCRA 
database for animal waste air emissions information at the national 
level, that would be housed at EPA. The Agency believes a centralized 
EPCRA submission portal and management system can improve the reporting 
program by centralizing and standardizing reporting and reducing burden 
on both the implementing agencies and the regulated community. 
Recognizing that existing statutory reporting requirements under EPCRA 
may need to be amended to allow it, EPA also seeks comment from the 
implementing agencies and the regulated community on the benefits and 
challenges of creating an EPCRA national database. EPA requests comment 
not only for animal air emissions, but for reporting under all sections 
of EPCRA, except section 313, which is the Toxics Release Inventory 
(TRI) program. Following is a list of applicable EPCRA reporting 
requirements that could be built into a national system:

--Facility emergency planning notifications (40 CFR part 355, subpart 
B; EPCRA section 302).
--Emergency release notifications (40 CFR part 355, subpart C; EPCRA 
section 304)
--Hazardous chemical inventory reports (40 CFR part 370; EPCRA sections 
311 and 312).

    Currently, reporting methods are determined by the state or tribe. 
These SERCs and TERCs are using a variety of submission and data 
management platforms to meet their statutory obligations. Over half of 
the states are using three existing submission platforms for annual 
Section 312 Tier II submissions: Tier2 Submit, E-Plan, and TIER II 
MANAGER. The other states use other commercial software or have state-
specific programs. Through a centralized database, EPA could collect 
EPCRA reports and make those reports immediately available to state, 
tribal, and local agencies, thus improving the efficiency, efficacy, 
and transparency of EPCRA reporting compliance and removing the burden 
to state, tribal, and local agencies receiving and managing the 
submittals. The database can also reduce the burden on these 
implementing agencies by providing a public right-to-know information 
center. The clearinghouse would be a ``one-stop shop'' for industry, 
the EPCRA implementing agencies, and the public. A national database 
would provide industry the opportunity to report to multiple states and 
local entities in one platform. The implementing agencies would have 
access to all of the submitted information for their covered area, 
reducing their administrative burden and allowing them to focus on 
implementation, community safety, and compliance. The database would 
handle all reporting requirements, as well as requests from the public 
for information, allowing entities to use their limited resources to 
improve compliance efficacy.
    The EPCRA emergency planning provisions, codified under 40 CFR part 
355, subpart B, include several required communications with the SERC 
or TERC and/or LEPC or TEPC, such as the initial notification that a 
facility is subject to EPCRA emergency planning requirements; 
notification of the facility emergency coordinator; notification of any 
relevant changes to emergency planning; and providing information to 
the LEPC or TEPC upon request. A national database could manage, track, 
and store all these required communications. Furthermore, with the 
planning data, the EPA could facilitate coordination between LEPCs or 
TEPCs with similar types of facilities to share best practices and 
lessons learned on how to plan for specific risks.
    The emergency release notification requirements, under 40 CFR part 
355, subpart C, include immediate notification via phone and follow-up 
written reports to the SERC or TERC and LEPC or TEPC, as well as 
specific requirements for continuous release reporting requirements. A 
national EPCRA database could handle these notifications, although 
initial release notification may not be ideal, because initial 
notifications are time-sensitive and are typically phone calls to the 
LEPC or TEPC and SERC or TERC. However, the 30-day follow-up written 
reports and continuous release reports could be well-suited for a 
national database. LEPCs, TEPCs, TERCs and SERCs would have the benefit 
of having the data standardized and stored. Additionally, EPA could 
coordinate discussions on clean-up and response activities among LEPCs 
and TEPCs with similar releases.
Request for Information
    EPA requests the following information relating to a National EPCRA 
Database:
    #24--National EPCRA Database--General: The Agency is soliciting 
information and comment in general about a national EPCRA database, as 
well as any input on how such a system should be designed, developed, 
and implemented. EPA seeks quantitative information characterizing how 
a centralized reporting clearinghouse could reduce burden to 
stakeholders. The Agency also solicits information on conducting a 
pilot of a national database with a small number of states and local 
implementing agencies.
    #25--National Database--Managing Right-to-Know Data: EPA requests 
comment and information from LEPCs, TEPCs, SERCs, and TERCs on whether 
a national EPCRA database would be beneficial to receive and manage 
reports and, pursuant to the right-to-know requirements, make those 
reports available to the public.
    #26--National Database--Managing Reports from Facilities: EPA seeks 
input on both the potential benefits and any disadvantages for LEPCs, 
TEPCs, SERCs, and TERCs of creating a national database for receiving 
and managing EPCRA sections 302, 304, 311, and 312 reports.
    #27--National Database--Animal Waste Air Emissions Reporting: EPA 
seeks input on the potential efficiencies or inefficiencies to the 
regulated community of submitting EPCRA animal waste air emissions 
reports to one centralized portal. EPA also seeks input on both the 
potential benefits and disadvantages to the communities near animal 
farming operations and the general public of a national database to 
receive and manage reports and, pursuant to right-to-know requirements, 
make reports available to the public.
    #28--National Database--Facility Benefits and Disadvantages: EPA 
seeks input on potential benefits and disadvantages for the regulated 
community of a national database for complying with EPCRA sections 302, 
304, 311, and 312 reporting requirements.
    #29--National Database--Managing FOIA Requests: EPA seeks input 
from

[[Page 80232]]

LEPCs, TEPCs, SERCs, and TERCs about EPA managing Freedom of 
Information Act (FOIA) requests and releasing EPCRA data from a 
national system. The Freedom of Information Act generally provides the 
public with access to federal agency records, however FOIA does not 
apply to state and local agencies. Each state has their own laws and 
procedures for releasing records to the public. The EPA is soliciting 
comment and information on what issues may need to be addressed if EPA 
were to manage FOIA requests on what would be considered state and 
local data under EPCRA.
    #30--National Database--Other: The Agency is soliciting information 
and comment on any other issues related to a national EPCRA database.

C. Costs and Benefits

1. Estimated Regulated Universe
    EPA estimates the total number of farms with livestock to be 
approximately 1.25 million based on data from the United States 
Department of Agriculture's (USDA) 2017 Census of Agriculture. However, 
only a fraction of these farms is expected to exceed the reportable 
quantity for either ammonia and/or hydrogen sulfide, and thus be 
regulated under a potential future rule that would reinstate reporting. 
The Agency used data from NAEMS and literature reviews to estimate 
contribution factors (i.e., estimate of quantity of air emissions per 
animal per day), which were applied to the livestock numbers from the 
USDA Census, to generate an estimate of 37,891 farms that would be 
expected to exceed the reportable quantity. All of the estimates, 
calculations and assumptions are in the TBD in the docket.
    The reporting burden is expected to be relatively minimal because 
the Agency anticipates that continuous release reporting would be used 
in a majority of instances (see Section D.2 for burden estimates). Even 
though the reporting burden is expected to be low and only encompass 
approximately 38,000 farms, other farms may not know whether their 
operations will exceed the reportable quantity. The following section 
(Section D.2) solicits comment on estimating the burden to all 1.25 
million farms with livestock.
Request for Information
    EPA requests the following information relating to estimating the 
regulated universe:
    #31--Regulated Universe--Number of Farms Reporting: The Agency is 
soliciting information and comments on the estimate of farms expected 
to exceed the reportable quantity. The Agency is specifically 
soliciting information and comment on the methods for estimating the 
number of regulated farms, the data sources used, and the estimated 
contribution factors, which are all detailed in the TBD. Regarding the 
contribution factors, the Agency realizes that the contribution factors 
EPA used, for estimating the regulated universe, may not take into 
account all the variables that impact any given farm's animal waste air 
emissions, and is soliciting information and comment on the accuracy of 
the contribution factors used to estimate the regulated universe; any 
additional information that may provide a more accurate estimate of the 
regulated universe; and the utility of refining the contribution 
factors or the method used.
2. Burden Estimates
    In analyzing whether to pursue a rulemaking to rescind the 
reporting exemption, EPA considered the costs associated with 
reinstating reporting requirements. EPA estimated the total costs by 
combining unit costs of compliance per farm with the estimate of the 
affected farm universe. The Agency used animal inventory data from 
USDA's 2017 Census of Agriculture in the affected NAICS codes to 
identify the regulated universe of 37,891 farms. Farm operations with 
continuous air releases of ammonia or hydrogen sulfide from animal 
waste that meet or exceed the RQ would qualify for reduced reporting 
requirements, including:
    <bullet> Providing initial continuous release telephone 
notification to the SERC (or TERC) and LEPC (or TEPC);
    <bullet> Submitting initial written report to the appropriate SERC 
(or TERC) and LEPC (or TEPC);
    <bullet> Providing notification of a statistically significant 
increase (SSI) in a release to the SERC (or TERC) and LEPC (or TEPC); 
and,
    <bullet> Providing notification of a new release resulting from a 
change in source or composition.
    EPA estimated the annualized cost of a potential future rule over a 
10-year analysis period. The total annualized cost of reinstating EPCRA 
reporting would be approximately $2.9 or $2.8 million using three and 
seven percent discount rates, respectively, as detailed in the TBD.
    Table 2 summarizes the total undiscounted cost of a future rule, by 
year. For reporting farms, first-year costs are $16.8 million, and 
total first-year costs for SERCs (or TERCs) and LEPCs (or TEPCs) is 
$6.5 million. Costs in years 2 through 10 of the analysis are 
significantly less, at approximately $0.1 million per year for both 
sets of affected entities.

                               Table 2--Total Cost by Year (Undiscounted) (2022$)
----------------------------------------------------------------------------------------------------------------
                                                         Animal operations          State, local, tribal gov't
             Compliance requirement              ---------------------------------------------------------------
                                                    First year      Years 2-10      First year      Years 2-10
----------------------------------------------------------------------------------------------------------------
Rule Familiarization and Applicability                $3,710,295              $0              $0              $0
 Determination..................................
CRRR Reporting:
    Labor Costs.................................      11,782,802         164,451       6,481,555         108,026
        Initial Notification....................       1,073,190               0       2,160,518               0
        Initial Written Report..................      10,709,612               0       4,321,037               0
        Reporting an SSI........................               0         164,451               0         108,026
    O&M Costs...................................       1,307,223               0               0               0
        Initial Notification....................               0               0               0               0
        Initial Written Report..................       1,307,223               0               0               0
        Reporting an SSI or New Release.........               0               0               0               0
                                                 ---------------------------------------------------------------
            Total Cost..........................      16,800,321         164,451       6,481,555         108,026
----------------------------------------------------------------------------------------------------------------


[[Page 80233]]

    The Agency has also prepared a screening analysis to assess small 
entity impacts, documented in the TBD. The Agency used sales data from 
the USDA's 2017 Census of Agriculture in the affected NAICS codes, 
along with Small Business Administration (SBA)-specified small business 
thresholds, to identify the potential set of affected small operations. 
EPA combined these data with the affected universe data to estimate the 
subset of reporting farms that meet SBA size standards for small 
entities. EPA estimates that 31,921 out of the 37,891 farms in the 
regulated universe (84 percent) are small operations under SBA size 
standards. EPA performed a cost-to-sales test for these entities and 
found that none of the affected operations would experience costs 
greater than one percent of annual sales. Based on the results of the 
cost-to-sales test, EPA concludes that a future rulemaking would not 
have a significant economic impact on a substantial number of small 
entities.
Request for Information
    EPA requests the following information relating to the costs of a 
potential future rule:
    #32--Burden--Reporting Farms: The Agency is soliciting information 
and comments on the cost estimates for farms and state and local 
agencies. See the TBD for a detailed analysis. The Agency made 
assumptions for hours for specific tasks; labor rates; how many SSIs 
would be submitted; how many new farms would report in the out years; 
and other variables. EPA is requesting information and comment on these 
assumptions and variables that could result in more accurate burden 
estimates.
    #33--Burden--Non-Reporting Farms: The Agency is soliciting 
information and comments on the cost estimates for all farms to 
understand and potentially estimate their air emissions. The Agency 
estimates that all 1.25 million farms with livestock (both reporting 
and non-reporting farms) would incur between 1 and 2.5 hours of burden 
per farm for rule familiarization, which totals to $97.6 million burden 
for all farms. See section 3.2 in the TBD for a detailed analysis.
    #34--Burden--Small Farms: The Agency is soliciting information and 
comments on the analysis of impacts to small farms. See the TBD for a 
detailed analysis.
    #35--Burden--Qualitative Costs: The Agency is soliciting 
information and comments on any qualitative costs of a reinstating 
reporting. In the TBD, the Agency attempted to quantify as many costs 
of a potential future rule as it was able to.
3. Environmental Justice and Community Right-To-Know
    Any rulemaking resulting from this ANPRM would impact only the 
reporting requirements for animal waste air emissions; a new rule would 
not directly lessen air emissions from animal waste on farms, nor 
directly change disproportionate and adverse effects experienced by 
communities with environmental justice concerns. However, one of the 
benefits of requiring reporting is the availability and accessibility 
of this information to surrounding communities. This reporting is 
critical to advancing the Agency's environmental justice goals by 
increasing the understanding of potential impacts of air emissions from 
animal waste on communities with environmental justice concerns. As a 
result, fenceline communities may benefit from the reporting of animal 
waste air emissions at farms.
    Although a potential future rule would not directly address human 
health or environmental conditions, the EPA investigated potential 
environmental justice concerns by conducting geospatial analyses. To 
conduct a thorough, national-level environmental screening analysis, 
publicly available data of source locations of air emissions are 
required. These data do not exist at the national level. While the 2017 
USDA Census is a complete count of U.S. farms and ranches and the 
individuals who operate them, publicly available data are aggregated to 
the county level to protect the confidentiality of the information 
provided by individual respondents. The EPA conducted three levels of 
analysis to identify communities that may be affected by the reporting 
rule based on the level of animal operations' ammonia emissions for 5 
animal sectors (Beef, Broilers, Dairy, Layers, and Swine) at the 
county-level, tribal-level, and available state-level data.
    As shown with the 2017 USDA Census data in the environmental 
justice analysis provided in TBD, that while the upper quintile of 
counties emitting ammonia from animal waste on average does not exceed 
the national average for minority populations or low-income 
populations, four of the top ten counties in ammonia emissions from 
animal waste comprise populations exceeding the national average for 
minority populations and low-income populations. The EPA believes that 
in some localities, minority and low-income populations may be 
disproportionately impacted by air emissions from animal wastes, which 
is shown in the TBD at the county level and census block level using 
the USDA Census data and the state-specific farm data.
Request for Information
    EPA requests the following information relating to the benefits of 
a potential future rule:
    #36--Benefits--Environmental Justice: The Agency is soliciting 
information and comments on the environmental justice analysis. See the 
TBD for details.
    #37--Indirect Benefits: The Agency is soliciting information and 
comments on the indirect benefits of a potential future rule to 
reinstate EPCRA reporting by farms. A future rule would only be a 
reporting rule to provide state, tribal and local implementing agencies 
and communities information on releases of ammonia and hydrogen sulfide 
from animal wastes on farms. However, after air emission information is 
shared with states, locals, and communities, there are potential 
indirect benefits, such as communities experiencing greater capacity 
for meaningful involvement in the development and implementation of 
local pollution management policies or the information leading to 
voluntary initiatives by farms to review farming and waste management 
practices and set goals for reductions in emissions, and institute 
``good neighbor'' policies. Potential changes in farm operations--
including reductions in the releases and changes in the waste 
management practices--could yield health and environmental benefits. 
Indirect benefits of a potential future rule have not been quantified.

D. Small Farms

    Based on the existing EPCRA RQs of 100 pounds per day for both 
ammonia and hydrogen sulfide, EPA estimates the regulated universe of 
the proposed rule to be 37,891 farms. The regulated universe is 3 
percent of approximately 1.25 million farms nationwide in the 2017 USDA 
Agriculture census. Of the 37,891 reporting farms, 31,921 farms are 
estimated to be small businesses as defined by the Small Business 
Administration (SBA), see the TBD in the docket. Separately, using the 
National Pollution Discharge Elimination System (NPDES) farm size CAFO 
categories, only approximately 3,000 of the 37,891 farms would be 
considered small CAFOs and limited to swine and dairy operations, also 
see the TBD in the docket. Even though there are relatively few ``small 
farms'' that would be required to report releases from animal waste, 
EPA recognizes that

[[Page 80234]]

most farms would not know whether they exceed the reporting threshold 
(i.e., be in the regulated universe). This section is designed to 
gather information relating to a reporting exemption for small farms, 
which could create regulatory certainty for farmers.
1. Potential Reporting Exemption for ``Small Farms''
    If the Agency reinstates reporting for farms, EPA seeks information 
on whether ``small farms,'' which would need to be defined in a 
potential future rule, should be exempted from reporting animal waste 
air emissions.
    EPA considered relevant comments received during the previous 2008 
\11\ and 2019 \12\ rulemakings, as discussed in the response to comment 
documents in those dockets. For both the 2008 and the 2019 rules, 
commenters acknowledged that ``small farms,'' as described but not 
defined by the commenters, would not be expected to report because they 
are likely to fall below the RQ-based reporting threshold. In 2008, 
commenters stated that they did not think ``small farms'' would reach 
the established 100-pound RQs even without a reporting exemption. One 
commenter stated that EPA should establish an exemption for farms under 
an income level threshold which was not specified but would 
differentiate between ``true'' family farms and larger industrial-type 
operations. The 2019 rule received a comment from an environmental 
group that smaller animal feeding operations are unlikely to be subject 
to EPCRA reporting.
---------------------------------------------------------------------------

    \11\ https://www.regulations.gov/document/EPA-HQ-SFUND-2007-0469-1359.
    \12\ https://www.regulations.gov/document/EPA-HQ-OLEM-2018-0318-0405.
---------------------------------------------------------------------------

Request for Information
    EPA requests the following information:
    #38--Small Farm Exemption--General: EPA requests comment on whether 
``small farms'' should be exempted from reporting animal waste air 
emissions. If so, how should they be exempted? EPA requests any 
information that the Agency can use to develop a justification to 
exempt ``small farms'' from reporting air emissions under EPCRA. 
Similarly, the Agency is requesting any information that supports not 
exempting ``small farms.''
    #39--Small Farm Exemption--Criteria: EPA requests comment on the 
criteria that should be considered in establishing a potential 
exemption for small farms. For example, should an exemption be based on 
animal number thresholds at the operation; animal waste management 
methods; single species-focused operations; or other criteria? The 
Agency requests information that could be used to differentiate small 
farms from medium and large operations that would support exempting 
small farms from EPCRA reporting.
2. Defining ``Small Farms''
    Any potential action for small farms requires defining ``small 
farm.'' The term ``farm'' is already defined in 40 CFR 355.61. If the 
Agency pursues reinstatement of EPCRA reporting, and further pursues an 
exemption from that reporting for small farms, the Agency would not be 
seeking to change the definition of ``farm,'' but rather to expand on 
the existing definition to categorize ``small farms.''
    In the 2008 rule exempting farms from reporting animal waste air 
emissions (73 FR 76948), EPA defined different sizes of farms using the 
NPDES size definitions for CAFOs, due to familiarity with these size 
categorization terms within the agriculture industry.\13\ The NPDES 
farm size categories of small, medium, and large are based on animal 
threshold numbers for each species. For example, mature dairy cattle 
have species-specific threshold ranges as follows: less than 200 
defined as a small CAFO, 200 to 699 defined as a medium CAFO, and 700 
or above defined as a large CAFO.
---------------------------------------------------------------------------

    \13\ A table of EPA's NPDES regulatory definitions of large, 
medium, and small CAFOs can be viewed here: https://www3.epa.gov/npdes/pubs/sector_table.pdf.
---------------------------------------------------------------------------

    EPA seeks input on whether using the NPDES CAFO farm size 
categories for defining small farms is the best choice, and if not, EPA 
is seeking input on an alternative definition for ``small farm.'' EPA 
is aware of and has considered other ways to define ``small farms.'' 
For example, an alternate definition for small farm could come from the 
Economic Research Service at USDA,\14\ which classifies sizes based on 
revenue. The USDA defines small farms to have annual gross cash farm 
income (GCFI) of less than $350,000. If revenue is used to define 
``small farms'', the farms would make the determination as to whether 
they were subject to the exemption, unless they voluntarily provide the 
applicable information. Any revenue-based definition would make it 
challenging for EPA, or other agencies, to conduct reporting compliance 
and independently determine whether a farm meets the exemption 
threshold. For example, EPA, or other another agency, would have to 
determine if revenue information is available, and whether the source 
of revenue (e.g., from the livestock at the farm or from another source 
such as crop production) is significant in defining farm size for EPCRA 
reporting purposes.
---------------------------------------------------------------------------

    \14\ USDA. 2022. Economic Research Service. Farm Structure and 
Contracting. Available at: https://www.ers.usda.gov/topics/farm-economy/farm-structure-and-organization/farm-structure-and-contracting/.
---------------------------------------------------------------------------

    No direct comments were received to assist the Agency in defining 
``small farms'' in the 2008 nor 2019 rulemakings.
Request for Information
    EPA requests the following information:
    #40--Small Farm Definition: The Agency is soliciting comment and 
information on how to define ``small farm'' in the context of creating 
a potential reporting exemption. Specifically, EPA is soliciting input 
on applying the definition of small farms from NPDES or USDA to EPCRA 
reporting. Are there other small farm definitions that may be more 
appropriate for EPCRA reporting? Are there certain attributes from 
``small farms'' that correlate with quantity of air emissions (e.g., is 
there a certain level of farm revenue that correlates to farms with 
smaller manure management operations)?
3. Animal Waste Management Methods for ``Small Farms''
    EPA seeks information on animal waste management methods that could 
be used to differentiate farm size and how such methods would affect 
air emissions of ammonia and hydrogen sulfide.
    In examining this issue, the Agency reviewed comments received on 
the 2008 and 2019 rules, though no comments explicitly addressed how to 
differentiate farms by size.
Request for Information
    EPA requests the following information:
    #41--Small Farm--Waste Handling: EPA is soliciting information and 
comment on certain waste management practices that could be used to 
support an exemption for small farms, if EPCRA reporting is reinstated. 
Specifically, the Agency seeks information on various animal waste 
handling methods based on size of operation (number of animals) and 
species of animals that would be different at small farms versus medium 
and large farms and may affect air emissions of ammonia and hydrogen 
sulfide.

[[Page 80235]]

4. Health Impacts From ``Small Farms''
    Section IV.A in this document outlines the health impacts from 
animal waste air emissions, which are further detailed in the TBD. This 
section is intended to solicit comment and information regarding any 
distinction that could be made between adverse health impacts from air 
emissions from small farms versus medium and large farms.
Request for Information
    EPA requests the following information:
    #42--Small Farm--Health Impacts: The Agency is soliciting 
information on health impacts from different size farms to determine if 
lack of adverse health impacts would support a reporting exemption for 
small farms, if EPCRA reporting is reinstated through a potential 
future rule. Conversely, the Agency is also soliciting information that 
demonstrates adverse health impacts from animal waste air emissions 
from ``small farms.'' When submitting information, the Agency requests 
the commenters to provide any information on how the requester or 
information is defining ``small farm.''
5. State, Tribal, and Local Emergency Planners and Responders Use of 
``Small Farm'' Animal Waste Air Emissions Information
    Reinstating animal waste air emissions reporting requirements would 
require owners or operators of covered farms to provide initial 
notification to either the SERC or TERC, and the LEPC or TEPC in the 
event of a release of an EPCRA EHS, as required by EPCRA section 304, 
or of a CERCLA hazardous substance in an amount equal to or greater 
than the RQ for that substance within a 24-hour period. Within 30 days 
of the initial notification, farms must submit a written follow-up 
report to these agencies. EPA recognizes that reinstating EPCRA animal 
waste air emissions reporting will increase the number of notifications 
(ex: telephone, email, etc.) and written release reports submitted to 
SERCs or TERCs and LEPCs or TEPCs. These agencies will have the 
responsibility of receiving initial notifications and managing the 
reports as well as making the information publicly available as part of 
the EPCRA right-to-know provisions.
    Previous comments submitted to EPA on the 2008 rulemaking include 
comments from LEPCs stating their support for a reporting exemption 
because there would likely be no federal, state or local emergency 
response to such release reports.\15\ EPA also received comments from 
the National Association of SARA Title III Program Officials (NASTTPO), 
an EPCRA-related association for state, tribal, and local EPCRA 
implementing agencies, supporting the 2019 EPCRA reporting exemption 
(84 FR 27533).\16\ NASTTPO stated that these reports are of no 
particular value to LEPCs and first responders and instead are 
generally ignored because they do not relate to any specific event. The 
NASTTPO noted that open dialogue and coordination between local 
emergency authorities and animal farming operations can be more 
effective than EPCRA-required release reporting for farms that do not 
handle quantities of chemicals designated under EPCRA as EHSs.\17\ 
While some state and local agencies have stated they support not 
receiving release reports of animal waste air emissions from farms, the 
EPA believes there may be value in providing these reports for 
fenceline communities.
---------------------------------------------------------------------------

    \15\ See comments submitted with docket IDs: EPA-HQ-SFUND-2007-
0469-0498; EPA-HQ-SFUND-2007-0469-0215.
    \16\ See comment submitted with docket ID: EPA-HQ-OLEM-2018-
0318-0238.
    \17\ See NASTTPO letter as part of comment submitted with docket 
ID: EPA-HQ-OLEM-2018-0318-0236.
---------------------------------------------------------------------------

Request for Information
    EPA requests information from SERCs, TERCs, LEPCs, and TEPCs on the 
usefulness of information pertaining to ``small farm'' animal waste air 
emissions for the purposes of emergency planning and response.
    #43--State, Local, and Tribal Impacts: Through prior public comment 
periods from previous rulemakings, as well as the ongoing coordination 
between EPA and SERCs, TERCs, and LEPCs, the Agency has heard that 
state, tribal, and local emergency planners and responders would not 
use EPCRA release reports of animal waste air emissions from farms, and 
so, the Agency is inferring that if EPCRA reporting is reinstated, an 
exemption for small farms would be well received by state, tribal, and 
local emergency planners and responders. The Agency is requesting any 
new comments and information that would support or contradict this 
position. Regarding small farms, if EPCRA reporting is reinstated 
without a small farm exemption, EPA is requesting comment on whether 
state, tribal, and local implementing agencies would process and 
utilize release reports for animal waste air emissions from small farms 
differently from reports from larger farms.
6. Adjusting the RQs of Ammonia and Hydrogen Sulfide for Animal Waste 
Air Emissions
    One way EPA could potentially reduce reporting of air emissions 
from animal waste for small farms is by adjusting the RQs or creating 
industry and media-specific RQs. The existing RQs for ammonia and 
hydrogen sulfide are both set at 100 pounds. Any release of either of 
these substances at or above the RQ in a 24-hour period would require 
reporting under EPCRA.
Establishing Category-Specific Animal Waste Air Emissions RQs
    CERCLA section 103 requires immediate notification to the National 
Response Center whenever an RQ or more of a CERCLA hazardous substance 
is released in a 24-hour period. Similarly, EPCRA section 304 requires 
notification to the SERC or TERC and the LEPC or TEPC when there is a 
release of an RQ or more of either a CERCLA hazardous substance or an 
EPCRA EHS in any 24-hour period. For substances listed under both 
CERCLA (40 CFR 302.4) and EPCRA (40 CFR part 355, Appendices A and B), 
the applicable RQ is established under CERCLA and adopted under EPCRA 
(April 22, 1987, 52 FR 13378). For EHSs not listed under CERCLA, EPA 
used the EPCRA threshold planning quantities (TPQs) to assign RQs, by 
raising the statutory RQ (one lb) to be the same as their TPQs.
    EPA adopted a five-level system for RQs of 1, 10, 100, 1,000, and 
5,000 pounds for CERCLA reporting. These levels were originally 
established pursuant to CWA section 311 (40 CFR part 117). EPA has 
authority to establish and adjust RQs for hazardous substances under 
CERCLA and for EPCRA EHSs.
    EPCRA additionally requires EPA to consider and establish TPQs for 
EHSs, which is the quantity of the substance present at a facility for 
which emergency planning notification is required under EPCRA section 
302. Currently, the TPQ for ammonia and hydrogen sulfide is 500 lb for 
all industry sectors. The TPQ methodology is separate from the RQ 
methodology and was developed specifically to reflect a quantity that 
could cause serious health consequences if accidentally released. 
Generally, the TPQ for a substance should be higher than the RQ, which 
is the case for most EHSs. For other EHSs, the TPQ is the same quantity 
as the RQ, which is dependent on the criteria and the ranking factor 
established for TPQ and RQ. In a future rulemaking, if EPA were

[[Page 80236]]

to raise the RQs for hydrogen sulfide and ammonia from animal waste air 
emissions at farms above the existing 500-pound TPQ (i.e., to either 
1,000 or 5,000 lb), the Agency may need to address the TPQs for ammonia 
and hydrogen sulfide emitted from animal waste from farms, since those 
situations may not be appropriate for emergency planning purposes.
    Based on publicly available information, EPA developed preliminary 
estimates of the reporting universe and the numbers of small farms 
under several possible RQs. Under the existing RQ of 100 pounds, 
approximately 37,891 of the 1.25 million farms, based on USDA's 2017 
Census of Agriculture, would be required to report releases of air 
emissions from animal waste, which comprises approximately 3% of farms. 
Using the NPDES CAFO size categories, this estimate of 37,891 farms 
includes approximately 3,000 small farms. If the RQ for both ammonia 
and hydrogen were raised to 500 pounds, the preliminary estimated 
regulated universe would decrease from 37,891 to approximately 15,000 
farms; at 1,000 pounds RQ, the estimated regulated universe would 
decrease even further to approximately 5,000 reporting farms. 
Additionally, at an RQ of 1,000 pounds, EPA estimates that no small 
farms, under the NPDES definition, would exceed the reportable 
quantity. See the TBD for the analysis of number of regulated farms at 
different RQs.
Request for Information
    EPA requests the following information relating to adjusting the 
RQs of ammonia and hydrogen sulfide for animal waste air emissions:
    #44--RQ Adjustment--General: EPA requests comments and supporting 
information, if available, on the potential of adjusting the RQs for 
ammonia and hydrogen sulfide to reduce the reporting burden for small 
farms, based on the existing RQ methodology.
    #45--Industry-Specific RQ Adjustment: The Agency is soliciting 
comment and information on creating industry and/or media-specific 
animal waste air emissions RQs for farms only, where all non-farming 
industries would retain the existing 100-pound RQs for ammonia and 
hydrogen sulfide, but animal waste at farming operations would have 
separate, higher RQs for ammonia and hydrogen sulfide. Additionally, 
the Agency is requesting comment and information on what the ``farm-
specific'' RQs should be. The Agency is seeking information that 
supports or refutes the concept of separate RQs for the same hazardous 
substance.

E. National Report on Animal Waste Emissions

    The issue of whether farms should report under EPCRA has been 
through various rulemakings and litigation since 2008. The decision 
seems to be binary (i.e., farms report or they do not). The Agency is 
including this section of the ANPRM to solicit comment and information 
on potential creative solutions to provide information to fenceline 
communities on air emissions from animal wastes without requiring farms 
with having to estimate and report to their state, tribal and local 
agencies.
Request for Information
    EPA requests the following information on finding a creative 
solution to reporting animal waste air emissions:
    #46--National Report based on USDA or State Data: EPA contemplated 
developing a national report using USDA Census data to gather locations 
of farms and applying the contribution factors developed under NAEMS. 
However, the USDA Census dataset only supplies farm locations at the 
county-level, and there are additional restrictions on sharing farm 
data when an individual farm can be identified. The EPA conducted the 
county-level analysis with the USDA data, which can be found in the 
TBD. However, EPA does not believe that county-level data will be 
granular enough for fenceline communities to understand the amounts and 
impacts of animal waste air releases. The EPA also evaluated all the 
state datasets we found that included farm locations (see the TBD). 
However, the handful of state datasets are well short of building a 
national report on animal waste air emissions. The Agency is soliciting 
comment and information on our assessment of using USDA Census data and 
datasets from state agencies. We are also soliciting comment and 
information on any other datasets that may be used to develop a 
national report of air emissions. Finally, the Agency is soliciting 
comment on whether this type of national report would/should be a 
compromise for this long-standing issue.
    #47--Other Technology for Estimating Air Releases: The Agency is 
soliciting comment and information on newer technologies that could be 
applied to understanding animal waste air emissions and then 
distributing that information to fenceline communities. For example, 
are there existing technologies, such as satellite-based instruments, 
to measure ammonia and/or hydrogen sulfide that can be applied at a 
granular enough level to show quantities released from individual 
farms?
    #48--Other Solutions: The Agency is soliciting comment and 
information on other possible solutions to providing animal waste air 
emissions to fenceline communities without requiring farms with 
reporting.

V. Request for Comment and Additional Information

    EPA is seeking comment on all questions and topics described in 
this ANPRM. In addition, EPA encourages all interested persons to 
identify and submit comments on other issues relevant to EPA's 
consideration of the potential development of future regulations 
pertaining to animal waste air emission reporting under EPCRA. EPA 
requests that commenters making specific recommendations include 
supporting documentation, where appropriate.
    Instructions for providing written comments are provided under 
ADDRESSES, including how to submit any comments that contain CBI or 
PBI.

VI. What are the Next Steps EPA will take?

    EPA intends to carefully review all comments and information 
received in response to this ANPRM. Once that review is completed, EPA 
will determine whether to pursue a proposed rule to reinstate air 
emission reporting from animal waste at farms under EPCRA.

VII. Statutory and Executive Order Reviews

    Under Executive Order 12866, entitled Regulatory Planning and 
Review as amended by Executive Order 14094: Modernizing Regulatory 
Review, EPA submitted this action to the Office of Management and 
Budget (OMB). Any changes made in response to recommendations received 
as part of Executive Order 12866 review have been documented in the 
docket for this action. Because this action does not propose or impose 
any requirements, other statutory and executive order reviews that 
apply to rulemaking do not apply. Should EPA subsequently determine to 
pursue a rulemaking, EPA will address the statutes and executive orders 
as applicable to that rulemaking.
    Nevertheless, the Agency welcomes comments and/or information that 
would help the Agency to assess any of the following: the potential 
impact of a rule on small entities pursuant to the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601 et seq.); potential impacts on

[[Page 80237]]

state, local, or tribal governments pursuant to the Unfunded Mandates 
Reform Act (UMRA) (2 U.S.C. 1531-1538); federalism implications 
pursuant to Executive Order 13132, entitled Federalism (64 FR 43255, 
November 2, 1999); availability of voluntary consensus standards 
pursuant to section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law 104-113; tribal 
implications pursuant to Executive Order 13175, entitled Consultation 
and Coordination with Indian Tribal Governments (65 FR 67249, November 
6, 2000); environmental health or safety effects on children pursuant 
to Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997); energy effects pursuant to Executive Order 13211, entitled 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 22, 2001); paperwork burdens 
pursuant to the Paperwork Reduction Act (PRA) (44 U.S.C. 3501); or 
human health or environmental effects on minority or low-income 
populations pursuant to Executive Order 12898, entitled Federal Actions 
to Address Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994) and Executive Order 14096, 
entitled Revitalizing Our Nation's Commitment to Environmental Justice 
for All (88 FR 25251, April 21, 2023). The Agency will consider such 
comments during the development of any subsequent rulemaking.
    Additional information about statutes and executive orders can be 
found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

List of Subjects in 40 CFR Part 355

    Environmental protection, Air pollution control, Chemicals, 
Disaster assistance, Hazardous substances, Hazardous waste, Natural 
resources, Penalties, Reporting and recordkeeping requirements, 
Superfund.

Michael S. Regan,
Administrator, Environmental Protection Agency.
[FR Doc. 2023-25270 Filed 11-16-23; 8:45 am]
BILLING CODE 6560-50-P


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