Superfund and Natural Resource Damages Litigation
As part of omnibus appropriations legislation, Congress rewrote section 103(e) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in order to make an important change exempting farmers from otherwise applicable hazardous substance release reporting obligations related to air emissions of hazardous substances from animal wastes. The rewritten subsection also continues to provide that the handling, application, and storage of registered pesticides by an agricultural producer are not subject to release reporting under CERCLA section 103. In the new language, “air emissions from animal waste (including decomposing animal waste) at a farm,” are now exempt from hazardous substance release reporting.
This statutory air emission exemption overruled the D.C. Circuit’s 2017 decision in Waterkeeper Alliance v. EPA. That decision struck down an EPA administrative exemption from required release reporting for airborne releases of reportable quantities of ammonia, hydrogen sulfide, and other hazardous substances from farm animal wastes, as arises from waste lagoons on farms.
Click here to read the full chapter co-authored by Russell Randle for the Section of Environment, Energy, and Resources of the American Bar Association.
