Cercla and epcra

Both the Comprehensive Environmental Response, Compensation, and Liability Act (the Superfund law, 42 U.S.C. §§9601-9675) and the Emergency Planning and Community Right-to-Know Act (42 U.S.C. §§11001-11050) have reporting requirements that are triggered when specified quantities of certain substances are released to the environment.4 Both laws, which are administered by the Environmental Protection Agency (EPA), utilize information disclosure in order to increase the information available to government and citizens about the sources and magnitude of chemical releases to the environment. In addition to reporting requirements, CERCLA includes provisions authorizing federal cleanup of releases of hazardous substances, pollutants, or contaminants that may present an imminent and substantial danger to the public health or welfare (Section 104), and imposing strict liability for cleanup and damages for injury to, destruction of, or loss of natural resources resulting from releases of hazardous substances (Section 107). At issue today is how the reporting requirements and other provisions of these laws apply to poultry and livestock operations.

Superfund authorizes programs to remediate uncontrolled or abandoned hazardous waste sites and assigns liability for the associated costs of cleanup. Section 103(a) of CERCLA requires that the person in charge of a facility (as defined in Section 101(9)) that releases a "reportable quantity" of certain hazardous substances must provide notification of the release to the National Response Center.

EPCRA establishes requirements for emergency planning and notification for storage and release of hazardous and toxic chemicals. Section 304(a)(1) of EPCRA requires the owner or operator of a facility (as defined in Section 329(4)) to report to state and local authorities any releases greater than the reportable quantity of substances deemed hazardous under Superfund or extremely hazardous under EPCRA. Under Superfund, the term "release" (Section 101(22)) includes discharges of substances to water and land and emissions to the air from "spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching, dumping, or disposing into the environment." Under EPCRA, the term "release" (Section 329(8)) includes emitting any hazardous chemical or extremely hazardous substance into the environment. Superfund excludes the "normal application of fertilizer" from the definition of release, and EPCRA excludes from the definition of hazardous chemicals any substance that is "used in routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer."

The CERCLA definition of "hazardous substance" (Section 101(14)) triggers reporting under both laws. Among the reportable substances that may be released by livestock facilities are hydrogen sulfide, ammonia, and phosphorus. The reportable quantity (RQ) for both hydrogen sulfide and ammonia is 100 pounds per day, or 18.3 tons per year; the RQ for phosphorus is 1 pound per day. Section 109 of Superfund and Section 325 of EPCRA authorize EPA to assess civil penalties for failure to report releases of hazardous substances that equal or exceed their reportable quantities (up to $27,500 per day under CERCLA and $27,500 per violation under EPCRA).

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