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    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 BlackDavid Crass

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 78, No. 4, April 2005

    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.

    rooster and eggby Angela Black & David A. Crass

    The 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 agricultural areas.

    David A. Crass

    Crass

    Angela Black

    Black

    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 this article.

    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 emissions.

    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 study results.

    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 violations.

    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 enforcement actions.

    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 covenant.

    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 period.16

    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 EPA.17

    Conclusion

    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 study.

    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.

    Endnotes

    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 seq.

    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 atmosphere).

    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. § 122.23.

    9An executable copy of the agreement can be downloaded from the Internet at www.epa.gov/compliance/resources/agreements/caa/cafo-agr-050121.pdf PDF 132 KB.

    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 EPA.

    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.




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