Farm Air Emissions: Deadline for Notifications Draws Near

Beginning November 15, 2017, owners and operators of farms and animal feeding operations (AFOs) must report air releases of hazardous substances, as required by the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA).

The requirement is a relatively recent development ordered in April 2017 by the U.S. Court of Appeals for the D.C. Circuit (Waterkeeper Alliance et al. v. EPA). The court’s ruling vacated a 2008 EPA rule that generally exempted farms from the reportable quantity (RQ) notification requirements of CERCLA and EPCRA, primarily when ammonia (NH3) and hydrogen sulfide (H2S) are released from manure storage and handling operations. In September 2017, the court granted EPA’s request to postpone the reporting requirements until November 15. But the EPA has been slow in issuing guidance to affected businesses on requirements that few of them have experience with. The Agency’s guidance became available October 26, 2017, less than 3 weeks before the reporting deadline.

“Unless the court further delays this date [November 15, 2017], all farms (including those previously exempted) that have releases of hazardous substances to air from animal wastes equal to or greater than the reportable quantities for those hazardous substances within any 24-hour period must provide notification of such releases,” states the EPA.

The Agency did not indicate if it has requested or will request the court to grant a deadline extension, which would aid facilities that have a very short time to review and act upon the guidance material. But even if the November 15 deadline remains in force, it is unlikely that the EPA will promptly launch a campaign to find and penalize violators. Nonetheless, owners and operators that have operations that release NH3 or H2S or any other CERCLA or EPCRA hazardous substance should not assume nonenforcement. The court case resulted from a strong legal challenge by environmental groups who assert that emissions of NH3 and H2S from farms are endangering people living nearby. The EPA and other regulatory agencies may have no choice but to take enforcement action to uphold the court’s order and demonstrate to the agricultural sector and the public that compliance with the laws, particularly when public safety is a concern, is not optional.

Here we briefly summarize the background of the CERCLA and EPCRA requirements, the application of those requirements to farms, and the guidance material.

Reportable Quantities

Generally, CERCLA Section 103(a) requires the person in charge of a facility to notify the National Response Center (NRC) immediately if that person has knowledge that an RQ or more of a hazardous substance has been released from the facility within a 24-hour period. To determine whether the CERCLA RQ requirement has been triggered, the person in charge must consider the amount released from all sources at the facility and determine if together the release of the hazardous substance equals or exceeds an RQ. For example, if a facility has three sources, each releasing one-third of an RQ of a CERCLA hazardous substance X over the same 24-hour period, and the release of hazardous substance X is not federally permitted, the person in charge must report that release to the NRC.

EPCRA Section 304 notification requirements for releases of extremely hazardous substances (EHSs) parallel the CERCLA requirements but apply to the owner or operator of a facility and are intended to make release information available immediately to state and local authorities.

CERCLA Section 103(f)(2) and EPA’s implementing regulations at 40 CFR Part 302 and, for EPCRA, Part 355, provide a special reduced reporting option for releases of CERCLA hazardous substances and EPCRA EHSs. This relief applies to facilities where releases of hazardous substances or EHSs are “continuous” and “stable in quantity and rate” under the regulatory definition at 40 CFR 302.8(b). For these types of releases, reporting facilities can choose either to (1) report on a per-occurrence basis, or (2) report as a continuous release in accordance with EPA’s continuous release rule (July 24, 1990, FR).

Emissions Study

The EPA rarely, if ever, enforced either the CERCLA or EPCRA release notification requirements at farms. According to the EPA, reports that agricultural releases of NH3 or H2S were harming people were so uncommon that the Agency could not envision that it would ever make use of such notifications. Also, there are no accepted methods for measuring the quantity of such releases from agricultural and livestock facilities. But, under pressure from environmental and public health groups, in 2005, the Agency reached an agreement with AFOs by which owners and operators would assist in the development of methods to estimate emissions of hazardous substances. In the EPA-led study—called the National Air Emissions Monitoring Study ((NAEMS)—participating AFOs would collect data on emissions and provide these to the Agency. The agreement includes a provision whereby the EPA agreed not to sue participating AFOs for alleged air emissions violations until the emission estimating methods (EEMs) are complete. In a September 2017 report, the Agency’s Office of Inspector General found that the Agency had made little progress in developing the EEMs. Nevertheless, it its new guidance, the EPA states NAEMS participants will be required to report releases meeting or exceeding the RQ under CERCLA only after the Agency completes the NAEMS.

Under the 2008 rule vacated by the court, all farms were relieved from reporting hazardous substance air releases from animal waste under CERCLA, and only large concentrated AFOs (CAFOs) were subject to EPCRA reporting.

The current guidance comprises frequently asked questions about compliance obligations scheduled to take effect November 15; worksheets and directions on how to estimate emissions of NH2 and H2S from different operations (e.g., beef, dairy, swine, and poultry); and a checklist of information to submit under the continuous release provision.

CERCLA

Under CERCLA Section 103, any facility must immediately notify the NRC at 800-424-8802 when the facility has air releases of hazardous substances from animal wastes that are equal to or greater than the RQs for those substances within any 24-hour period. The most common regulated substances released at farms and AFOs are NH2 and H2S; the RQ for each of these substances is 100 pounds.

CERCLA provides for no notification extensions; releases equal to or exceeding an RQ must be reported immediately. As noted, the only exception is for farm owners/operators participating in the Agency’s Animal Feeding Operation Air Compliance Agreement, provided they are in compliance with their agreements.

EPCRA

The EPA interprets EPCRA to exclude farms that use substances in “routine agricultural operations” from reporting under EPCRA Section 304. The Agency says it intends to conduct a rulemaking to clarify its interpretation of “used in routine agricultural operations” as it pertains to EPCRA reporting requirements.

Estimating Emissions

The EPA states that farm owners/operators may consider any of the resources provided in the guidance or any other studies available for estimating releases. Owners/operators can also coordinate with their trade associations or land-grant universities in their areas; the guidance provides a list of AFO air quality programs and land-grant universities available for consultation.

In general, releases can be estimated by relying on:

• Past release data
• Engineering estimates
• Knowledge of the facility’s operations and release history
• Best professional judgment

Monitoring data is not required.

The guidance makes the following points about specific operations:

• Dairy. Emissions estimates are inclusive of NH3 emissions from animal pen surfaces and the runoff holding pond(s). NH3 emissions rates vary between summer and winter months. The emissions estimator worksheet indicates that H2S levels are fairly stable throughout the year.
• Swine. The worksheet considers typical confinement housing and manure storages that are located in a temperate climate. Emissions rates are provided for shallow and deep storage pits.
• Poultry. The worksheet provides NH3 and H2S emissions rates for poultry operations, including broilers, laying hens, and turkeys.
• General emissions estimates. An NH3 emissions estimator is available for beef, dairy, horse, poultry (broiler, turkey, and ducks), and swine. This estimator was completed by the University of Nebraska on NH3 losses from animal housing facilities in various conditions (i.e., open dirt lots, on cool and humid days) for different species. Example NH3 emissions estimator worksheets are available for swine and cattle.

Continuous Release Option

The EPA says it considers emissions from animal waste to be continuous and stable in quantity and rate and, therefore, eligible for the continuous release reporting option. The guidance states that owners and operators may follow the following steps for reporting continuous releases from farms in lieu of meeting the CERCLA RQ notification requirements.

• Step 1: Notify the NRC at 800-424-8802. To qualify as a continuous release notification, the caller must inform the NRC representative that this is an initial continuous release notification. The caller must provide the NRC representative with the name and location of the farm and the name(s) of the hazardous substance(s) released. The NRC representative will provide an identification number (CR-ERNS) for the farm. This number must be used for any follow-up report or notification required under the continuous release reporting requirements.
• Step 2: The farm submits an initial written notification to the EPA regional office for the area where the release occurs within 30 days of the call to the NRC. The EPA says it is developing a streamlined continuous release reporting form for farm owners/operators and plans to make this form available once it is finalized.
• Step 3: Within 30 days of the first anniversary date of the initial continuous release report, the person in charge of the farm must submit a onetime anniversary report to the EPA regional office. The person in charge must verify and update the information initially submitted for each of the hazardous substances reported. This follow-up report should be recertified by the person in charge.

Statistically Significant Increase

Under the continuous release reporting provision there is an ongoing requirement that owners/operators must immediately notify the NRC of:

• Statistically significant increases (SSIs), or an episodic release of a hazardous substance that exceeds the release quantity described in the upper bound of the normal range of the facility’s continuous release report. Only those releases that are both continuous and stable in quantity and rate may be included in the normal range. SSIs are typically triggered by an increase in the number of animals maintained on the farm (beyond the range used for the initial report) or a significant change (or disruption) in waste-handling systems or procedures.
• A significant change (or disruption) in waste-handling systems or procedures.

Owners/operators must annually review emissions from the farm. They must also estimate emissions following any significant changes in operations that may result in an SSI in emissions.

Pesticides

Farm owners/operators do not need to report the normal application of fertilizers (including normal application of manure as a fertilizer) or the handling, storage, or application of pesticide products registered under the Federal Insecticide, Fungicide, and Rodenticide Act. However, under CERCLA Section 103, any spills or accidents involving these substances must be immediately reported to the NRC when they meet or exceed the RQ.

EPA’s guidance, emissions estimators, checklists, and additional supporting material are available here.