EnviroNotes

By Andy Bowman, Chair, Environmental Law Department, Bingham McHale LLP

On December 21, 2007 U.S. EPA issued a proposed rule which exempts from reporting under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and the Emergency Planning and Community Right-to-Know Act (“EPCRA”) any releases to the air of hazardous substances, such as ammonia and hydrogen sulfide, arising from animal wastes at farms. The proposed exemption would apply only to releases to air and not to releases to soil, surface water or groundwater. The exemption also would not apply to releases from sources other than animal wastes, such as ammonia tanks.

CERCLA § 103(a) requires the owner or operator of a facility to immediately notify the National Response Center of any release of one of over 760 hazardous substances listed under CERCLA when the release involves a reportable quantity (“RQ”) within a 24-hour period. In addition Section 304 of EPCRA requires owners and operators of facilities to immediately report to state and local emergency response authorities any releases of CERCLA hazardous substances or EPCRA extremely hazardous substances if the release exceeds the applicable RQ.

U.S. EPA believes that the exemption is appropriate because it is unlikely to respond to any reported releases of hazardous substances from animal wastes. U.S. EPA sees emergency responses to releases from animal wastes as impractical and unnecessary.

U.S. EPA is taking comments on the proposed rule through March 27, 2008. The proposed rule can be found at 72 Federal Register 73700 (December 28, 2007).

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