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More Time to Sign


April 25, 2008
By Robynne Anderson

Topics

In a move designed to encourage
participation in its national air emissions consent agreement, the EPA
has extended the sign-up period from May 1st to July 1st.

    In a move designed to encourage participation in its national air emissions consent agreement, the EPA has extended the sign-up period from May 1st to July 1st. Milk and poultry producers in some parts of the US had expressed concerns that more time was needed to communicate with individual farmers, to help them analyze the complex legal document. Pork and egg producers appear to already be supportive of the agreement, but will also likely benefit from the lengthened sign-up period.

    The EPA announced the controversial air emissions agreement on January 31, 2005, after three years of negotiations with representatives of pork, egg, poultry and dairy industries. I’m told the beef industry asked not to be covered by this agreement, apparently because applicable statutes treat feedlot emissions differently from those of barns and lagoons.

    In exchange for participation in a study of farm air emissions, the EPA will “release and covenant not to sue” pork, egg, dairy and poultry producers for possible past and current air emissions violations if they meet the requirements of the agreement.

    The EPA’s future air requirements will apply to producers whether they participate in the agreement or not, but only participants will receive the agreement’s legal protections. By granting an air emissions “safe harbor” to participating producers, the EPA is also providing indirect protection from related state and citizen suits, according to industry representatives, although I understand no protections are provided from state “fence line” ambient air emissions violations or citizen nuisance odor suits. The EPA reserves the right to exclude producers who already face federal or state enforcement actions, or to bring action for criminal or “imminent, and substantial endangerment” situations.

    The negotiations with the EPA began four years ago when the Clinton Administration began suing large livestock and poultry operations for alleged violations of 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).         All three laws provide for federal, state or citizens’ enforcement and $32,500 per day penalties for current and past violations. Representatives of the livestock and poultry industries effectively argued that even if Congress intended these laws to apply to agriculture, there are no effective emissions criteria translating these laws to farm-level situations for farmers and manure management practices. The National Academy of Sciences agreed, setting the stage for the negotiated consent agreement.

    With the consent agreement, the EPA would “wipe the slate clean” for all alleged past violations of CAA, CERCLA and EPCRA, in return for help in developing the needed data for future regulations. Producers obtain the legal protections by payment of a nominal penalty, making their farms available as potential candidates for a two-year monitoring study, and at some future date certifying to the EPA that they either are below the compliance thresholds or are above, and if they are above, are engaging in needed compliance activities.

    The penalty varies by farm size and number, beginning at $200 for a single small farm and increasing to $100,000 for an integrator signing up more than 200 farms. Producers fill out forms describing their farms and send them to the EPA.  The legal protection begins when the EPA returns government-signed agreements and producers send in their penalty checks. The consent agreement and farm-description forms are available
at www.epa.gov/airlinks/afohowtocomment.html.

    Environmental groups, state air regulators and many media have been very critical of the consent agreement, arguing that the legal protections of the “safe harbor” interfere with their intended efforts to enforce the federal statutes. On the flip side, criticism has been leveled by those in agriculture who believe these environmental statutes should not apply to farm operations.

    The National Pork Producers Council and United Egg Producers have been chief proponents of the agreement and, with the help of state livestock associations, farm groups and land-grant universities, have held a series of regional workshops, conference calls and webview telecasts to reach out to producers of all species.

    The reality is that some air regulation is coming, although the extent and to whom it will apply won’t be fully known for several years. The consent agreement is an innovative approach to addressing the issues. It is also a voluntary solution. You and your farm can decide—but decide by July 1st.