[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Proposed Rules]
[Pages 80222-80237]
[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).

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:
     Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
     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.
     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;<PHONE_NUMBER>; [email protected].

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)

#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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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.

    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

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

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.

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

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

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

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:
     Providing initial continuous release telephone
notification to the SERC (or TERC) and LEPC (or TEPC);
     Submitting initial written report to the appropriate SERC
(or TERC) and LEPC (or TEPC);
     Providing notification of a statistically significant
increase (SSI) in a release to the SERC (or TERC) and LEPC (or TEPC);
and,
     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
----------------------------------------------------------------------------------------------------------------

    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

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.

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

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

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]
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