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Environmental Groups Press for Federal Regulation of Air Emissions from Animal Feeding Operations

April 27, 2011

In a move closely watched by the livestock and poultry industries, a coalition of environmental NGOs recently petitioned the U.S. Environmental Protection Agency (EPA) to set national air quality standards for ammonia at animal feeding operations (AFOs).[1] Petitioners contend that ammonia emissions from AFOs endanger human health and welfare. The petitioners argue that: “[]AFOs are leading contributors to the nation’s ammonia inventory; by one EPA estimate livestock account for approximately 80 percent of total emissions. []AFOs also emit a disproportionately large share of the ammonia in certain states and communities.” The petitioners ask EPA to designate ammonia from AFOs as a criteria pollutant and establish National Ambient Air Quality Standards (NAAQS) under the Clean Air Act. If EPA grants the petition, new and modified AFOs and other stationary sources emitting ammonia would potentially be subject to construction permitting requirements under the Clean Air Act’s Prevention of Significant Deterioration (PSD) rules.

I. Background – the Federal Clean Air Act

The Clean Air Act establishes a framework under which EPA and the states together regulate air quality. At the federal level, EPA is required to designate air pollutants (known as “criteria pollutants”) which “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare,” and which are emitted from “numerous or diverse mobile or stationary sources.”[2]

EPA is also required to establish limits (known as National Ambient Air Quality Standards, or NAAQS) for the maximum concentrations of air pollutants allowable in various parts of the country.[3] For each criteria pollutant, EPA establishes a primary NAAQS designed to protect public health, and secondary NAAQS designed to protect public welfare.[4] To date, EPA has established NAAQS for six criteria pollutants: sulfur dioxide (SO2), particulate matter (PM), nitrogen oxide (NOx), carbon monoxide (CO), ozone (O3), and lead (Pb).[5]

States are primarily responsible for administering the Clean Air Act, and are required to develop plans (known as State Implementation Plans, or SIPs) for implementing, maintaining, and enhancing NAAQS.[6] The programs over which states have regulatory responsibility include the New Source Review (NSR) program. The NSR program has a number of preconstruction review provisions, including Prevention of Significant Deterioration (PSD) permits which are required for new or modified “major emitting facilities” in areas meeting EPA’s air quality standards.

Prior to constructing or modifying a “major emitting facility” subject to PSD permitting requirements, the permittee must demonstrate that the facility will not cause or contribute to air quality violations, including violation of NAAQS.[7] The facility must also demonstrate that it is deploying “the best available control technology [BACT] for each pollutant subject to regulation … [that is] emitted from … [the] facility.”[8] BACT requires facilities to implement controls to achieve “the maximum degree of reduction of each pollutant subject to regulation.”[9] BACT determinations are facility- and pollutant-specific, and take into consideration energy, environmental, and economic impacts.

II. Background – AFO Air Compliance Agreement

According to the Department of Agriculture, there are an estimated 238,000 animal feeding operations where livestock and poultry are confined, reared, and fed.[10] AFOs have the potential to emit gases (e.g. ammonia, methane, and hydrogen sulfide), particulate matter, volatile organic compounds, and odor. Emission sources include barns, feedlot surfaces, manure storage and treatment units, silage piles, animal composting structures, and other smaller sources. The majority of emissions, however, are associated with the breakdown of manure stored in pits or lagoons or spread on fields.

AFOs and other agricultural operations that emit large quantities of air pollutants may be subject to regulation under the Clean Air Act, as well as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and the Emergency Planning and Community Right-to-Know Act (EPCRA). While air emissions from AFOs generally do not exceed thresholds set out in the Clean Air Act, a number of state air quality programs impose monitoring, inspection, and reporting requirements on AFOs.

The lack of standardized methodologies for measuring air emissions from AFOs has vexed both regulators and industry. In January 2005, negotiations between EPA and members of the agriculture industry resulted in the Air Compliance Agreement under which AFOs would agree to fund a study intended to gather sufficient data for the development of standards for estimating AFO air emissions. [11] Participating AFOs were also required to pay a civil penalty for past Clean Air Act violations and make their facilities available for monitoring. Once EPA publishes final emissions estimating methodologies for an AFO’s animal sector, that AFO must apply the final methodologies to determine what actions, if any, it must take to comply with all applicable Clean Air Act, CERCLA, and EPCRA requirements.

In exchange, participants received a covenant not to sue from EPA for past violations of the Clean Air Act, and certain provisions of CERCLA and EPCRA. In total, 2,580 AFOs (representing more than 13,000 farms) entered into the Air Compliance Agreement with EPA.

Earlier this year, EPA released data from 24 AFOs in nine states that took part in the National Air Emissions Monitoring Study (NAEMS) funded by the Air Compliance Agreement. Participating AFOs were monitored for ammonia, hydrogen sulfide, particulate matter, and volatile organic compounds. EPA has not yet published an interpretation of the NAEMS data, but anticipates doing so later this year. EPA also published a Call for Information (CFI) seeking additional information on emissions and process data for broiler, egg-layer, swine, dairy, beef, and turkey AFOs – specifically information on PM, H2S, NH3 (ammonia), and VOC emissions, and related process information concerning animal confinement and manure storage and treatment processes.[12]

III. The Petition

In April 2010, the Sierra Club and 19 other environmental and animal rights NGOs petitioned EPA to regulate ammonia emissions from AFOs under the Clean Air Act. Specifically, the petitioners argue that ammonia is a “pollutant” under the Clean Air Act:

Ammonia gas, an air pollutant emitted in vast quantities by Concentrated Animal Feeding Operations (CAFOs), meets the criteria for listing as a CAA criteria pollutant, because ammonia emissions from numerous CAFOs and other sources “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” CAA § 108.

The petitioners go on to identify the ways in which ammonia emissions from AFOs allegedly threaten public health and welfare:

Ammonia pollution threatens public health in numerous ways encompassed by these broad definitions. Threats to public health from ambient ammonia include increased risk of respiratory symptoms, eye and nose irritation, and other physical discomfort, as well as more severe health effects. Ammonia also contributes to the health effects of the mixture of gases in CAFO air emissions, which studies have linked to respiratory symptoms as well as headaches, nausea, and increased incidence of infant mortality. If certain communities face a disproportionate and substantial risk of adverse health effects from airborne ammonia, EPA may – and should – find that ammonia warrants regulation as a criteria pollutant. Extensive research conducted on both human and animal subjects over several decades establishes that ammonia emissions endanger human health. Indeed, several federal agencies, including EPA, have recognized this threat by establishing health standards or recommended exposure limits to protect workers and others exposed to airborne ammonia. CAFO emissions research further shows that airborne ammonia levels in some communities currently exceed relevant health benchmarks, demonstrating that ammonia is reasonably anticipated to endanger public health.

Additionally, the petitioners contend that ammonia emissions deteriorate property values, impact “quality of life”, impact the health of workers at AFOs, and contribute to haze.

IV. Recent Clean Water Act Developments Concerning AFOs

In addition to air emissions, wastewater discharges from AFOs have come under increased scrutiny in recent years. In 2003, for example, EPA published new rules that required owners and operators of AFOs to obtain wastewater discharge permits under the Clean Water Act’s National Pollution Discharge Elimination System (NPDES) program unless they could demonstrate that there was no potential discharge from their facility.[13] The Second Circuit struck down that rule in 2005, holding that the AFOs are not required to obtain NPDES permits unless there is an actual (as opposed to potential) discharge.[14]

EPA promulgated new rules in 2008, which required AFOs that “discharge or propose to discharge” to apply for NPDES permits.[15] The rule also included a voluntary certification procedure that attempted to provide a structured, objective set of criteria for owners and operators of CAFOs to follow in determining whether they need to apply for a permit. That rule was challenged by both industry and environmental groups. Pursuant to a partial settlement of the claims advanced by the environmental groups, EPA published guidance in 2010 “designed to assist permitting authorities in implementing the [CAFO regulations] by specifying the kinds of operations and factual circumstances that EPA anticipates may trigger the duty to apply for permits.” Industry challenges to the 2008 rules were resolved earlier this year when the Fifth Circuit struck down provisions requiring AFOs to obtain wastewater discharge permits under the Clean Water Act, even when the facilities are not actually discharging wastewater.[16] For more information, please see M. MacCurdy, Fifth Circuit Strikes Down Clean Water Act Rules for Animal Feedlots, Marten Law Environmental News (April 7, 2011).

V. Conclusion

The livestock and poultry industries will be carefully watching EPA’s response to the Clean Air Act petition, as a decision by EPA to grant the petition would potentially open AFOs to more stringent permitting requirements. Indeed, in the absence of technological or operational controls to limit ammonia emissions, it is possible that direct regulation of ammonia under the Clean Air Act could prevent the construction of new (or expansion of existing) large AFOs. Under the Administrative Procedures Act, EPA must respond to the petition within a “reasonable time.” In the meantime, EPA will continue to develop its emission monitoring methodologies, which are expected to be published later this year.

For questions on the petition, please contact any member of Marten Law’s Air Quality practice group.

[1] Under EPA’s Clean Water Act regulations, AFOs are defined as a lot or facility (other than an aquatic animal production facility) where the following conditions are met: (1) Animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period; and (2) Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility. 40 C.F.R. § 122.23(a)(1). Large AFOs are referred to as Concentrated Animal Feeding Operations, or CAFOs. CAFOs are defined by the number of “animal units” confined. Id. at § 122.23(a)(2). EPA has published a summary of how the regulations define Large, Medium, and Small CAFOs.

[2] 42 U.S.C. § 7408(a).

[3] Id. at § 7409.

[4] Id.

[5] See 40 C.F.R. Part 50.

[6] 42 U.S.C. § 7410(a)(1).

[7] 42 U.S.C. § 7475(a).

[8] Id.

[9] Id. at § 7479(3).

[10] Congressional Research Service, Air Quality Issues and Animal Agriculture: EPA’s Air Compliance Agreement (Apr. 9, 2008).

[11] 70 Fed. Reg. 4958 (Jan. 31, 2005).

[12] 76 Fed. Reg. 3060 (Jan. 19, 2011).

[13] 68 Fed. Reg. 7176 (Feb. 12, 2003).

[14] Waterkeeper Alliance v. Envt’l Prot. Agency, 399 F.3d 486 (2d Cir. 2005).

[15] 73 Fed. Reg. 70418 (Nov. 20, 2008).

[16] Nat’l Pork Producers Council v. Envt’l Prot. Agency, 2011 WL 871736 (5th Cir. Mar. 15, 2011).

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