Environmental Law Advisory Bulletin
EPA Offers Settlement for Air Emissions
From Animal Feeding Operations
By David
J. Ubaldi
[May 2005]
Citizen and environmental groups have been putting pressure on
the U.S. Environmental Protection Agency (EPA) to deal with the
alleged air emissions from animal feeding operations (AFOs). These
groups have claimed that AFO emissions are responsible for a host
of negative impacts, including offensive odors, decreased quality
of life, and harmful health effects. They have used these claims
to justify costly legal action against AFOs and to increase the
regulatory pressure on agencies charged with overseeing their operations.
They have convinced EPA that it needs to do something,1
but the fact is that no one—not even EPA—knows if air
emissions from AFOs are really an issue. No one has compiled the
data necessary to determine if an AFO’s emissions are above
the applicable air quality thresholds.
To remedy this situation, EPA issued a Consent Agreement and Final
Order (the “Agreement”), which will attempt to establish
methodologies for estimating air emissions from AFOs. The Agreement
will require participating companies from the egg, broiler chicken,
turkey, dairy, and swine industries to fund a nationwide emissions-monitoring
study. The study will focus on developing models for emissions from
buildings or structures used to house livestock and store or treat
livestock waste. Open air facilities like feedlots are not included
as part of the study.
Participation
The Agreement is voluntary. Those companies choosing to participate
will pay a civil penalty between $200 to $100,000 depending on the
size and number of farms in the company’s operation. For example,
a dairy farm with fewer than 700 cows or heifers will pay a $200
penalty, while a company with over 200 farms will pay a $100,000
penalty. Companies will also be required to contribute to a study
fund that will provide the money necessary to collect data from
representative farm sites around the country. It is anticipated
that participating farms will each pay approximately $2,500 into
the fund. EPA has set a
July 1, 2005 deadline for AFOs to participate
in the Agreement.
Limited Release
EPA is offering participating companies a limited release and covenant
not to sue from liability for past and ongoing CAA, CERCLA, and
EPCRA violations. This release will protect an AFO from federal
liability for potential emissions during the projected 24-month
monitoring study period and the subsequent 18-month data analysis
and policy development period. Once EPA develops a method for estimating
emissions collected from various AFOs, participating and non participating
AFOs will be required to comply with all reporting and permitting
requirements to the extent necessary. Any participating AFO that
refuses to comply with EPA’s final decision, or that chooses
to challenge the final methodology developed, will lose the benefits
of the release and covenant not to sue and may become susceptible
to regulations for past violations.
Agreement Does Not Provide Complete Protection
Companies considering participation in the Agreement need to know
what the Agreement will not do:
- The Agreement does not protect participating companies from
suits brought by citizen and environmental groups under state
odor and nuisance statutes or the citizen suit provisions of the
CAA, CERCLA, or EPCRA. EPA does not have the authority to limit
private citizens' rights to sue under these laws.
- The Agreement does not protect participating companies from
state or federal criminal prosecutions that could result from
unreported releases or failures to comply with permitting requirements.
- The Agreement does not protect participating companies from
state or federal action to address imminent harm. EPA specifically
reserves the right to investigate companies that it feels are
substantially and imminently endangering human health and the
environment.
- The Agreement does nothing to prevent a state from bringing
an action for violation of state environmental laws.
Is Participation Worth It?
Companies will need to determine on an individual basis whether
it makes sense to participate in the Agreement. An important consideration
would be whether an operation/AFO is likely to face claims and/or
litigation for air emission-related issues. While the Agreement
does not remove the threat of litigation from citizen and environmental
groups, it does provide participating companies with valid equitable
arguments that can be raised in their defense. The Agreement demonstrates
that neither the agency nor operators can accurately estimate emissions
from facilities or comply with existing permitting and reporting
obligations until EPA develops a reliable methodology. Participating
AFOs will be doing everything they can to address any potential
emission while EPA conducts its monitoring study and develops its
policy.
A copy of the Consent Agreement and Final Order can be found at
EPA’s website: http://www.epa.gov/compliance/resources/agreements/caa/cafo-agr-050121.pdf.
FOOTNOTES
1
EPA is concerned that AFOs are emitting air pollutants like ammonia,
hydrogen sulfide, particulate matter, and volatile organic compounds.
If emitted in sufficient quantities, these substances may be regulated
under the Clean Air Act (“CAA”), the Comprehensive Environmental
Response, Compensation and Liability Act (“CERCLA”),
and the Emergency Planning and Community Right-to-Know Act (“EPCRA”).
We invite you to contact us for more information:
This Environmental Law Advisory is a publication
of the Environmental Law Department of Davis Wright Tremaine LLP.
Our purpose in publishing this Advisory is to inform our clients
and friends of recent developments in environmental law. It is not
intended, nor should it be used, as a substitute for specific legal
advice as legal counsel may only be given in response to inquiries
regarding particular situations.
Copyright © 2005, Davis Wright Tremaine
LLP.
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