Vol. 78, No. 4, April
Regulating Farm Emissions:
EPA Conducts Two-Year Study
Qualified farmers may participate in the EPA's new two-year
study of air pollutant emissions from certain types of farms. The study
results will lead to the development of standards for measuring and
regulating emissions from live-stock operations. Help your farming
clients decide whether they should participate, but do it soon –
study enrollment ends July 1, 2005.
Angela Black & David A.
he U.S. Environmental Protection Agency (EPA)
recently announced a new federal program to address air pollutant
emissions from certain types of farms. The program provides farmers who
meet certain eligibility criteria with incentives to participate in a
voluntary study that the EPA hopes will ultimately lead to developing
standards for measuring and regulating emissions from livestock
operations. The proposed program, notice of which was published in the
Federal Register on Jan. 31, 2005,1 gives
farmers only until July 1, 2005, to decide whether to participate. This
article outlines the details of the program as well as the benefits and
risks of participating and not participating.
Over the years, the EPA has struggled with how to regulate emissions
of air pollutants from confinement livestock operations, such as those
confining hogs, poultry, and dairy cattle. In these facilities, known as
Animal Feeding Operations (AFOs), animals are housed in confined areas,
thereby concentrating animal populations and their waste. A 2002 report
by the National Academy of Sciences emphasized the need for
scientifically credible ways of estimating emissions from AFOs.2 In recent years, the lack of enforceable standards
for monitoring and measuring farming emissions has been brought to the
forefront by conflicts arising from suburban encroachments on
David A. Crass, U.W.
1991, is a partner in Michael Best & Friedrich LLP, Madison, and is
chair of the firm's Land and Resources Practice Group, coordinator of
the Agribusiness Special Practice Group, and a guest lecturer at
regulatory and environmental law workshops sponsored by numerous
educational facilities and trade associations. He practices primarily in
environmental/ regulatory law and land use and agricultural law.
Angela Black, U.W.
2002, is an associate in the firm's Land and Resources Practice Group,
focusing on representing individuals and businesses in real estate, land
use, construction, and environmental law.
The authors thank Dan O'Callaghan for his invaluable assistance with
The problem the EPA has faced in regulating AFO emissions under
current environmental laws, and standards adopted pursuant to those
laws, is that such emissions do not originate from a single point, such
as an industrial smokestack. Instead, AFO emissions tend to aggregate
from the production area of the operation as a whole. In particular, the
EPA has grappled with how the provisions of the Clean Air Act
(CAA),3 the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA),4 and the Emergency Planning and Community
Right-to-Know Act (EPCRA)5 apply to
pollutant emissions from farms. When enacted, those environmental laws
were primarily intended to address industrial air pollutants, not farm
As the trend toward larger, more concentrated farming operations
continues, traditional distinctions between farming and industry have
become blurred. This blurring has caused the EPA to attempt to regulate
AFO emissions through application of traditional air emissions
standards, albeit with much difficulty. After extensive negotiations
with farming industry representatives, state and local governments,
environmental groups, and other stakeholders, the EPA recently announced
a program it hopes will ultimately lead to an effective way to address
the difficulties it has encountered.
The program consists of three major elements: 1) the EPA and eligible
AFOs that elect to participate will sign a consent agreement; 2) a
two-year national study will be conducted to gather scientific data
about emissions from various segments of the farming industry (for
example, dairy, poultry, swine, and so on); and 3) methodologies will be
developed for measuring and monitoring pollutant emissions from farms.
The program's primary goals include: 1) reducing air pollution; 2)
promoting a national consensus for measuring and monitoring farming
emissions; and 3) ensuring that farms comply with existing environmental
laws regulating air pollutant emissions.
In addition to providing certain eligibility criteria, the EPA has
identified the regions and types of farming operations it will likely
target for the program. For example, with respect to the dairy sector,
four operations are targeted for monitoring, one each from the Midwest,
the Northeast, the West, and the South. The EPA anticipates that the
Midwest dairy sector participants will be those with a free stall barn
construction with natural ventilation, manure collection via flush or
scrape, and manure storage in a lagoon. The same types of specifications
are identified for the other animal species covered by the program,
including swine, laying hens, turkeys, and broilers.
Program participants are required to fund a national study,
participate in the study, waive certain rights to challenge the data and
protocols used in and developed by the study, and pay a "penalty" for
presumptive emissions violations. When the study concludes, the EPA is
expected to adopt formal emissions-estimating methodologies based on the
The program offers several benefits to participants, including a
release and covenant not to sue from the EPA for certain past and
ongoing civil violations related to air emissions, and an opportunity to
be a part of the study that will likely lead to the new emissions
standards applicable to farming operations. Farms that do not
participate will not receive any of the program's protections, thus
remaining potentially liable for all past and ongoing emissions
The results of this program will almost certainly have an impact on
Wisconsin's farm industry. In anticipation of the federal program, the
Wisconsin Department of Natural Resources has delayed the effective date
of certain state regulations governing air emissions to allow Wisconsin
farmers to participate in the study.6
Wisconsin lawyers should be ready to assist farm clients in
understanding the benefits and potential drawbacks of the federal
program, as well as the interaction between state and federal
regulations governing air emissions.
Overview of the Program
Briefly, to participate in the federal program a farm must: 1)
operate an eligible type of farm; 2) elect to participate by completing
a written agreement with the EPA; 3) be accepted by the EPA into the
program; and 4) comply with all the obligations imposed by the
agreement. The EPA, in turn, provides to participating farms releases
and covenants not to sue for certain civil violations of the CAA,
CERCLA, and EPCRA committed in the past, during the study period, and
for a limited time afterward.
Eligibility and election to participate. The program
only allows participation by farms meeting the federal Clean Water Act's
definition of "animal feeding operations."7
That definition encompasses operations in which animals are confined for
at least 45 days in a 12-month period, and no grass or other vegetation
grows in the confinement area during the normal growing season.8 The program covers only AFOs in the dairy, egg,
broiler chicken, turkey, and swine industries. It does not cover
open-air operations such as cattle feedlots. As noted above, the EPA has
indicated the types of regional industry operations it will likely
target for program participation.
Further, the program only applies to specified types of emissions,
both in source and substance. Covered sources include buildings or
structures housing livestock and facilities used for storage or
treatment of waste, such as manure lagoons. Covered substances are
emissions of volatile organic compounds (VOCs), hydrogen sulfide
(H2S), ammonia (NH3), and
particulate matter (TSP, PM10, and PM2.5).
AFOs that meet the eligibility criteria and that want to participate
must enter into a consent agreement and final order (agreement)9 with the EPA under which they agree to pay a
penalty, contribute to the national study, and meet certain other
obligations.10 An executed copy of the
agreement must be submitted to the EPA no later than July 1,
2005.11 The EPA then has the discretion to
decide whether to enter into the particular agreement. The EPA may
decline to accept an AFO into the program for several reasons,
including, for example, when an AFO has been notified of possible
current violations of federal or state clean air acts.12 If the EPA allows an AFO to participate, it will
return the agreement, signed by the EPA and approved by the
Environmental Appeals Board.
Monetary contributions. Under the agreement,
participating AFOs must make two types of payments: 1) a civil "penalty"
for presumptive violations, and 2) a contribution to the nationwide
emissions study. The EPA calculates the penalty amount based on the
number and size of the farms covered by the agreement: from $200 per
farm for small farms up to $1,000 per farm for large farms. Participants
with multiple farms are subject to a total penalty cap, ranging from
$10,000 for a participant with 10 or fewer farms up to $100,000 for a
participant with more than 200.
The study contribution is the lesser of either $2,500 for each farm
covered by the agreement or a pro rata share of the total amount needed
to fully fund the portion of the study related to that AFO's particular
animal species. In addition, AFOs must make their farms available during
the study for monitoring by both the EPA and the contractor selected to
conduct the study. The contributions for the study will be used, in
part, to set up a nonprofit entity that will then administer the
remainder of the contributions to engage one or more contractors to
conduct the study. The EPA's role in the study generally includes having
the power to ultimately approve the contractor's plan for conducting the
study and having oversight during the study.
EPA's release and covenant not to sue. In exchange
for an AFO's payments and other obligations under the agreement, the EPA
agrees to provide a release and covenant not to sue for certain past,
present, and ongoing civil violations of the CAA, CERCLA, and
EPCRA.13 While the EPA has struggled with
how to enforce these laws with respect to farming emissions, it has
nonetheless attempted to do so in recent years. Thus, the program
benefits participating farms by protecting them from certain EPA civil
The EPA release and covenant not to sue generally applies to civil
violations related to: 1) air permitting requirements; 2) reporting and
notification requirements; and 3) violations of state and federal
implementation plans for emissions that violate ambient air quality
standards. However, the agreement provides numerous limitations on the
release and covenant not to sue, including: 1) limiting the
circumstances to which the release and covenant applies; 2) identifying
circumstances that, although outside an AFO's control, may nonetheless
cancel the release and covenant; and 3) enumerating certain obligations
of participating AFOs that, if not met, will void the release and
First, the EPA's release and covenant not to sue does not apply to:
1) criminal liability under environmental laws; 2) circumstances that
"may present an imminent and substantial endangerment to public health,
welfare or the environment"; 3) emissions from other equipment or
activities not specifically covered by the agreement; 4) any expansion
of a farm beyond its design capacity, as of the date the agreement is
signed, that triggers permitting requirements; and 5) lawsuits alleging
nuisance or damage to the property value of others.14
Second, regardless of whether an AFO meets its obligations, the
following circumstances may cancel the release and covenant not to sue:
1) the EPA does not ultimately approve the contractor's plan for
conducting the study; 2) the study, or any part of it, cannot be
completed because of insufficient funding; or 3) the EPA concludes that
methodologies cannot be developed for any or all of the operations or
industries covered by the study.15
Third, and not surprisingly, the agreement provides that the EPA's
release and covenant not to sue is contingent on an AFO meeting all of
its obligations under the agreement. Generally, an AFO's failure to
comply with any requirement of the agreement represents a breach of the
agreement that may void the release and covenant not to sue. More
specifically, the agreement enumerates obligations of participating AFOs
that, if not met, will void the release and covenant not to sue.
A detailed discussion of all the specific obligations imposed on
participating AFOs during the program is beyond the scope of this
article. However, those obligations generally relate to: 1) complying
with local and state nuisance actions related to air emissions; 2)
reporting and correcting violations of federally-approved state
implementation plans or an approved federal implementation plan; and 3)
accepting the protocols and data used in and developed by the study.
Furthermore, certain extremely large AFOs also are obligated to provide
specified notices to local, state, and national emergency response
authorities regarding emissions that may occur during the study
Finally, the release and covenant not to sue will terminate following
completion of the study and will apply only to civil violations that
occurred before the earlier of: 1) the date when the participating AFO
submitted its last required certification under the agreement; or 2) two
years after the AFO submits the required permit applications following
completion of the study.
AFOs' obligations following completion of the study.
In addition to fulfilling obligations during the study, participants
also must take several actions following completion of the study to
maintain the protection provided by the release and covenant not to sue.
Participants must apply the emissions-estimating methodologies developed
as a result of the study to each of their farms covered by the
agreement. Application of the methodologies will help determine whether
airborne emissions from farms are of a quantity that falls within the
scope of the CAA, CERCLA, or EPCRA. Specifically, upon application of
the methodologies to each farm, participants must apply for all permits
and comply with all emissions notification requirements that the
methodologies indicate are required. If application of the methodologies
indicates that a particular farm is not required to apply for permits or
provide notifications, the participant must so certify to the
While some critics are concerned that the EPA program gives too much
protection to AFOs for past violations, the program provides the
necessary incentives for AFOs to become engaged in the process of
developing uniform methodologies for future regulation of farming
emissions. People who believe that the program offers little incentive
for AFOs to participate should keep in mind that despite the EPA's
difficulties in regulating farming emissions under current standards,
the EPA has nonetheless pursued farms for alleged emissions violations.
It may very well be the case that the EPA will view those farmers who
avoid participation as targets for enforcement actions during the
The new emissions-estimating methodologies that are expected to
result from the study should clarify the extent to which farm emissions
may be regulated by the EPA and the circumstances under which those
emissions violate federal environmental laws. Despite the limitations
and costs of the program, Wisconsin farmers may be wise to participate
to ensure they are protected from potential liability during and after
the national study. Wisconsin lawyers representing farming clients
should not only educate themselves on the details of the program but
also educate their clients, thus ensuring that Wisconsin farmers are
adequately represented in developing the standards that will regulate
them for years to come.
1See 70 Fed. No. 19,
4958-77 (Jan. 31, 2005). On March 16, 2005, the EPA posted a change to
the program extending the enrollment period to July 1, 2005.
2National Academy of Sciences,
Air Emissions from Animal Feeding Operations: Current Knowledge,
Future Needs (2002).
342 U.S.C. § 7401, et
442 U.S.C. § 9601, et
seq. (generally requiring notifications to national response agency
of releases of certain hazardous pollutants above threshold amount
including emissions of pollutants to atmosphere).
542 U.S.C. § 11001, et
seq. (generally requiring notifications to state and local
emergency response agencies of releases of certain hazardous pollutants
above threshold amount including emissions of pollutants to
6See Wis. Admin. Code
§ NR 445.06(d).
7Other than adopting definitions
from the Clean Water Act (CWA), the program does not cover or otherwise
apply to requirements or violations of the CWA.
8See 40 C.F.R. §
9An executable copy of the
agreement can be downloaded from the Internet at www.epa.gov/compliance/resources/agreements/caa/cafo-agr-050121.pdf
10It is important to note that
the agreement is not an admission by the AFO that it is subject to
CERCLA or EPCRA reporting, is required to have a CAA permit, or has
violated those statutes.
11The consent agreement provides
that it shall be binding not only on the participating AFO as an entity
but also on the AFO's officers, directors, employees, agents,
successors, and assigns.
12The EPA also may decline to
enter into a particular agreement if it decides there is inadequate
representation of certain animal groups or types of farming operations
or inadequate funding for the study of such groups or operations.
13The EPA's release and covenant
not to sue an AFO will only apply to those farms and emission unit(s)
specifically designated in the participant's application accepted by the
14For a discussion of
farm-related nuisance law in Wisconsin, see Andrew C. Hanson, Brewing
Land Use Conflicts: Wisconsin's Right to Farm Law, 75 Wis. Law.
10 (December 2002).
15The EPA may conclude that
emissions-estimating methodologies cannot be developed from the study
results for any or all of the operations and industry sectors covered by
the study. In that case, the EPA will provide to AFOs notice identifying
the types of industries, farms, or emitting structures for which it
cannot develop methodologies. To the extent an AFO's operations fall
within those described in the EPA's notice, the EPA's release and
covenant not to sue will only cover potential violations occurring on or
before the date 120 days after the notice is mailed. Following receipt
of such a notice, the agreement will no longer require the AFO to
provide certain compliance certifications to the EPA that it would have
been required to provide on development of the methodology.
16In addition to other
requirements generally imposed on AFOs by the agreement, AFOs housing
more than 10 times the CAFO threshold of a particular animal species
must provide certain notices within 120 days of receiving a copy of the
executed consent agreement from the EPA. The required notices must be
made to the National Response Center and local and state emergency
response authorities (under CERCLA and EPCRA), must describe the AFO's
location, and must include a statement (in the form specified in the
agreement) describing its emissions. A copy of the notice also must be
sent to the EPA at the address specified in the agreement.
17Participating AFOs also may
install systems that process livestock waste to produce energy
("waste-to-energy" systems) but are not required to do so under the
program. An AFO's election to install such systems subjects it to
additional requirements and extended timelines (an additional 180 days)
to comply with the requirements discussed in this article.