Q: Which livestock operations are affected by EPA's hazardous substances reporting requirements (CERCLA and EPCRA)?
A: As a concise summary of the ruling: Large CAFOs must comply with the Emergency Planning and Community Right-to-Know Act (EPCRA).
It is easier to address the flip side of this question: as a result of the administrative exemption that was provided in the recently published (December 18, 2008) EPA ruling, those livestock and poultry operations that are not considered large CAFOs according to federal NPDES permitting are not obliged to report air emissions that normally arise from raising farm animals.
As clarification, regardless of livestock farm size and type, both CERCLA and EPCRA apply in the event of the release of a listed substance in the form of air emissions that don't normally arise from raising farm animals (e.g. a ruptured ammonia tank) or due to a failure in containment (e.g. a farm chemical spill).
Q: What obligations do I have under the Comprehensive Environmental, Response, and Liability Act (CERCLA)?
A: The final rule published on December 18, 2008, reduces the burden of complying with CERCLA reporting requirements on livestock and poultry farm operations. The across-the-board administrative exemption for CERCLA (only) means that livestock and poultry farms are not obliged to report to the EPA or other federal entities air emissions that normally arise from raising farm animals.
As clarification, regardless of livestock farm size and type, CERCLA does apply in the event of the release of a listed substance in the form of air emissions that don't normally arise from raising farm animals (e.g. a ruptured ammonia tank) or due to a failure in containment (e.g. a farm chemical spill).
Q: What does this mean and why am I just now hearing about this requirement?
A: The lack of an across-the-board exemption means that large CAFOs still are required to report air emissions (under EPCRA only) if the estimated maximum daily emission rate for a listed substance exceeds the specified threshold. Participants in the EPA air consent agreement were granted a temporary reprieve in liability for meeting this reporting requirement when they signed the agreement.
There was wide-spread belief that the recent final ruling would include an across-the-board administrative exemption for reporting air emissions that normally arise from raising farm animals for both CERCLA and EPCRA, as was proposed by EPA in December of 2007. Consequently, the reworded final ruling came as a surprise to many. Since the latest ruling does not change the law under EPCRA (it only provides an exemption for some to the existing law) and producers were given an opportunity to sign the air consent agreement, EPA's position is that there was no need to provide a grace period to come into compliance.
Q: What constitutes a hazardous substance?
A: Relative to air emissions from raising farm animals, a hazardous substance, according to federal reference, means the following compounds: ammonia, hydrogen sulfide, certain volatile organic compounds, and nitrogen oxide. Ammonia and hydrogen sulfide are considered by most to be the compounds that would trigger the reportable quantity or RQ.
Q: What is a reportable quantity (RQ)?
A: The reportable quantity for this rule is 100 lbs of a single hazardous substance during a 24 hour period. There are differing reportable quantities for mixtures, but livestock operations need to concern themselves with ammonia (primarily) and hydrogen sulfide emissions.
Q: How do I determine my good faith air emissions for EPCRA Reporting ?
A: The science surrounding emission rates from livestock facilities is still not well understood. Some Land Grant Universities have developed emissions estimators based upon currently available information, and EPA references cite such methods as being appropriate. For estimates that are tailored to a specific region or species, contact your Land Grant University or commodity association for possible resources. The University of Nebraska developed an Ammonia Emissions Estimator that estimates ammonia emissions for several general applications.
EPCRA requires that upper and lower limits on the estimate be provided. The requirement to report is based upon the upper limit. For CAFOs that must report, most are expected to need to do so based upon ammonia emissions. Comparatively less information is available on hydrogen sulfide. If an estimate for hydrogen sulfide cannot be determined or the estimated maximal daily release is less than 100 pounds, then do not report hydrogen sulfide emissions.
Note: You do not need to submit emissions calculations with the EPCRA; however, keep them on file for documentation of when and how the estimates were made.
Q: Does a large CAFO that signed the consent agreement with EPA need to comply with EPCRA?
A: Eventually, yes. Affected operations should confirm the nature of their obligations. What is clear is that if the enhanced estimates of air emissions that result from the National Air Emissions Monitoring Study (NAEMS) determine that emissions from a large CAFO exceed a reportable quantity, then the operation must report according to EPCRA.
Liability for not reporting prior to signing the consent agreement was waived by the agreement. The general interpretation has been that the obligation to report was deferred until EPA releases the results from the NAEMS. EPA does require that participating operations that are 10 times the size of the large CAFO designation are required to submit an abbreviated report of their estimated emissions within 120 days of receiving the executed agreement. If you are not sure that you've met this requirement, seek expert advice on complying with this requirement.
Q: What could happen after I file a report under the EPCRA law?
A: Since the report is an emergency report, it could elicit a response; but based upon statements included in the recent ruling (December 18, 2008), this is highly unlikely. Any action to be taken would be up to the local emergency planning committee and coordinator, or the state emergency planning committee. EPA believes a response to a notification (your report) about an air release at a farm is unlikely and impractical; meaning that there is no reason to believe that any action would be taken by any authority on any livestock farm.
Q: What could happen if I don't file a report under the EPCRA law?
A: Affected large CAFOs are strongly encouraged to comply with EPCRA. Failure to report a reportable emission is a violation of the law that could result in fines of $25,000 per day for noncompliance and possible criminal charges, punishable by up to 5 years in jail. It is impossible to broadly assess individual liability or predict the conditions under which enforcement would occur.