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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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