New Exemption from CERCLA Notification Requirements Re: Released Hazardous Substances


The Comprehensive Environmental Response, Compensation, and Liability Act’s (CERCLA, also known also as Superfund) stringent hazardous substance release reporting requirements are set forth as Section 103 of Superfund. A spill or release of a reportable quantity of a regulated hazardous substance must be reported immediately by the person in charge of the facility or vessel to the National Response Center. The hundreds of listed hazardous substances and their reportable quantities are set forth at 42 C.F.R. § 302.4 of the Environmental Protection Agency’s (EPA) rules. Their requirements apply to almost all facilities, with the exception of federally permitted releases, including farms.

This newest exception to the CERLA notification requirements is included in the Fair Agricultural Reporting Method Act, or FARM Act, that was included in the Consolidated Appropriations Act of 2018.

Briefly, the FARM Act amends Section 103 of CERCLA, which addresses “Notification requirements respecting released substances.” As amended, Section 103(e)(1)(A) retains the former provision exempting from certain CERCLA reporting requirements and penalties the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the handling and storage of such a pesticide product by an agricultural producer. New Section 103(e)(1)(B), however, now exempts from the CERCLA reporting requirements air emissions from animal waste (including decomposing animal waste) at a farm.

The terms “Animal Waste” and “Farm” are defined. The legislation concludes with a careful proviso that nothing in this title supersedes or modifies the responsibility or authority of any federal official or employee to comply with or enforce any requirement of CERCLA other than the hazardous substance notification requirements of Section 103 with respect to air emissions from animal waste at farms.

Correctly reporting releases, in particular greenhouse gas emissions, from animal waste generated at American farms has bedeviled the EPA and the farming community.