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Time's Tight to Sign Up for EPA Program

As the May 1 deadline for signing the recently announced Air Emissions Consent Agreement nears, pork producers are scrambling for clarification. In an effort to clarify key points about the agreement available to pork, egg and poultry and dairy producers, John Thorne, president of Washington-based C&M Capitolink and a National Pork Producers Council (NPPC) environmental policy consultant, joined Environmental

As the May 1 deadline for signing the recently announced Air Emissions Consent Agreement nears, pork producers are scrambling for clarification.

In an effort to clarify key points about the agreement available to pork, egg and poultry and dairy producers, John Thorne, president of Washington-based C&M Capitolink and a National Pork Producers Council (NPPC) environmental policy consultant, joined Environmental Protection Agency (EPA) staff at several regional informational meetings.

The agreement came about because EPA, the USDA and the National Academy of Sciences all agreed that adequate data to establish air emissions compliance thresholds for livestock operations does not exist, Thorne explains. To obtain real-life, real-time emissions data, they knew they needed the cooperation of producers and an incentive for them to participate.

That incentive — the consent agreement — provides producers with legal protection from liability for past emissions, as well as during the two-year period of the study and the air emissions policy development period that follows.

By signing the agreement, producers enter a legal contract with EPA and join a diverse pool of farms from which a select few will be chosen to generate the compliance threshold data used to establish and regulate air emissions.

The National Pork Board has allocated $6 million in pork checkoff funds for the two-year benchmarking study. Pork Board Environmental Committee Chairman Max Schmidt, a producer from Elma, IA, says the checkoff funds were allocated to provide producer input on how sound scientific data can be used to develop and apply air emissions standards. Without actual on-farm measurements, regulators may have relied on “best estimates” that may not be accurate, he adds.

EPA approved the design of the study, which will be used to develop the methodologies used to estimate emissions. This emissions data will be used with aggregate, existing emissions data to draft compliance requirements that will apply to all producers, whether they signed the agreement or not.

Purdue University was selected to lead the study and to subcontract with other university scientists to collect data using the latest technologies available. Data will be collected from select hog farms in three regions — Southeast, Midwest and West. Farms will be chosen based on phase of production, ventilation technology and manure storage and treatment technologies available. Data will be recorded every few seconds for two years, non-stop, by mobile laboratories (fixed in place for two years) that will measure the impact of such factors as temperature, humidity, ration changes and much more.

Emissions to be measured include: ammonia (NH3), hydrogen sulfide (H2S), total suspended particles (TPSs), particulate matter smaller than 10 and 2.5 microns, and volatile organic compounds (VOCs).

The Penalty That's Not

Contained in the final order for compliance with the terms of the agreement is a section describing an assessment called a “penalty.” Thorne says, “Don't get hung up on the terminology. It is a legal consideration, does not admit guilt, and serves as one of the key things that binds you to the consent agreement.” The fee is due when EPA approves the agreement.

For producers with just one farm, and if that farm is below the large concentrated animal feeding operation (CAFO) threshold, the penalty contribution is the minimal $200. The penalty fees will be assessed on a sliding scale according to size (number of farms) and complexity outlined in the agreement. These fees are non-refundable and are deposited directly into the U.S. Treasury.

Signing Up

Sign-up forms are available from the NPPC web site, or may be downloaded from EPA at: www.epa. gov/compliance/resources/agreements/caa/cafo-agr-050121.pdf. The sheet must be signed to certify the accuracy of the information.

Specific questions about the consent agreement can be directed to Bruce Fergusson, EPA office of enforcement, 202-564-1261. For questions about the monitoring study, contact Sharon Nizich, Office of Air, 919-541-2825.

Common Legal Questions & Answers

Eldon McAfee, Beving, Swanson & Forrest, P.C., Des Moines, IA, attorney at law and legal counsel to the Iowa Pork Producers Association provided the following list of the most common legal questions and answers posed during the informational meetings:

Q: If these federal air emissions laws have been in effect for many years, why haven't they been enforced against agriculture until now?

A: Although these laws have never expressly exempted agriculture, for many years they were only applied to industrial (smoke stack) businesses. However, in several recent court decisions, the courts have applied these air emissions laws to livestock operations.

Q: Why do I have to sign an agreement with EPA and pay a penalty if it is not certain that my operation violated any of these federal air emission laws?

A: In developing the agreement, it was determined that the legal protections for potential past violations would be stronger if producers signed an agreement and paid a “penalty.” Primarily, this is because these federal air emissions laws allow citizens to file lawsuits demanding that courts enforce the law even if EPA has not. If these lawsuits are successful, the livestock operation is not only required to pay penalties for past violations, but also may be required to pay the citizen groups' attorney fees and other legal expenses. The rationale for the penalty is that it should protect against citizen suits because the EPA has taken enforcement action against the producer who signs up and pays the penalty.

Q: If I sign the agreement, am I assured that EPA will sign it, too?

A: No. EPA may not sign the agreement if it determines there is inadequate funding for the monitoring study (not likely for the pork industry), or if it determines that there is inadequate representation of eligible livestock groups and types of livestock facilities. EPA has stated that the number of participants for each type of operation must provide a representative sample to monitor. Other than that, there has been little guidance from EPA as to how it will determine what is inadequate representation of eligible livestock groups.

Q: Will my name and the information I submit about my operations be available to the public?

A: Yes, on both counts. However, in most states, much if not all of the information submitted is already public due to permits and manure management plans.

Q: Although signing the agreement does not provide protection from nuisance suits by people living near a hog operation, will it help against nuisance lawsuits?

A: Nuisance suits almost always involve complaints about odor, not the emission of the gases subject to the consent agreement. Current research shows that odor from manure is made up of many different compounds. In most states, the courts define nuisance as the unreasonable interference with a person's use and enjoyment of their property. The study is not measuring odor directly and therefore will not have a direct impact on nuisance issues. If you are sued for nuisance, the fact that you signed the consent agreement can be used in court to show that you are proactive and doing everything you can to comply with environmental laws. However, the attorney for the person suing you may try to use it to show that you sought legal protection for potential violations of air emissions laws. In short, your decision to participate in the consent agreement should not hinge on its effect on potential nuisance lawsuits against your operation.

Q: I feed hogs owned by another person in my buildings under contract; should I sign up?

A: Both contract growers and those who own pigs being fed by contract growers may sign the agreement. The legal protections extend only to those who sign the agreement. For example, if you sign up and the owner of the pigs doesn't, you are eligible for legal protection from the agreement and he is not. The most important point is that, ultimately, if any changes are required in your operation under the agreement, you must implement those changes or neither you nor the owner of the pigs has protection under the agreement.

Q: What could be required under federal air emissions laws covered by the agreement?

A: There are two areas of federal air emissions law which apply to livestock producers. The first is a reporting requirement for operations that emit over 100 lb. of hydrogen sulfide or ammonia on any given day (24-hour period), during a year. The second area is for farms which emit over 250 tons/year of hydrogen sulfide or ammonia. Under this requirement, livestock farms could be required to obtain a permit and install emission control equipment and implement practices to reduce the emissions. The exact emissions levels of hog operations are not known — the very reason why the monitoring study will be conducted. However, most experts expect most hog operations, except the larger farms, to trigger only the reporting requirements.

Q: Assuming my operation is not large enough to require anything other than filing reports, why can't I just start filing those reports now, or when the results of the monitoring study are released, instead of signing the agreement and paying a penalty?

A: You could do that, but you would not have the protection the agreement provides for past violations of the air emissions reporting laws. Many question if EPA would be able to “go after” everyone. While EPA may not be able to reach everyone, keep in mind the potential for citizen suits plus the fact that public records (permits, manure management plans, etc.) in most states have information on the size and type of your operation. In addition, if you start filing reports, the EPA will have the information on your farm and will know that you chose not to participate in the consent agreement. In short, each individual producer must weigh the potential risks and benefits of signing the agreement against the risks and benefits of not participating in this program