Does EPA agreement provide safe harbor from the storm?

For decades, both government and agriculture have assumed air pollution laws do not apply to livestock and poultry farms. But now the EPA suspects that the manure and animals at these farms may release more dust, ammonia, hydrogen sulfide, and other air emissions than previously known.
Farm emission controls? In fact, EPA believes some farms may be required to report their emissions, obtain permits, and install equipment to reduce pollution.
If this is true, these farms might face lawsuits, orders, and penalties for violating requirements they did even know existed.
But without accurate emissions data, EPA might overestimate the emissions and regulate more farms than necessary.
National study. Faced with these threats, several agricultural organizations negotiated an agreement with EPA that can be signed by farms choosing to participate.
This agreement will fund a national emissions study to test emissions at representative farms from animal barns and buildings, ponds and lagoons holding manure.
It will also provide participating farms with the opportunity to comply with any applicable requirements without incurring liability for past noncompliance.
Ante up $2,500. Each participating farm must pay $2,500 to fund a share of the study costs. The fees of the participating farms will be pooled to pay for the salaries, equipment, laboratory analyses, and other expenses of the scientists doing the study.
A participating farm must also agree to allow the testing to be conducted on its premises if selected by the scientists. However, only a few farms will be tested nationally, so the likelihood that any particular farm will be selected is small.
Dairy, swine, poultry. The national emissions study will be performed separately for four animal groups: dairy, swine, egg layers, and meat birds (broilers and turkeys). Each animal group will fund its part of the study separately.
If the number of farms signing the agreement is not adequate to fund the study of a particular animal group, then a study will not be performed on that group.
In that event, the farms in that group signing the agreement will have no obligations under the agreement, but also will not be able to obtain the benefits of the agreement.
Starting in ’05. The agriculture commodity groups have selected an independent scientist from Purdue University to oversee the study.
The study will start toward the end of 2005 and will take two years to complete. Then EPA will review the test results for 18 months to develop formulas that will be used to calculate the emissions from the farms.
These formulas will be used to quantify the emissions from nonparticipating as well as nonparticipating farms.
Can’t evade regulation. A farm cannot avoid regulation under the air pollution laws simply by declining to sign the agreement.
A farm that chooses not to participate can incur penalties of up to $27,500 per day for each violation if the study determines that a farm of its size emits regulated amounts of air pollution.
A nonparticipating farm is more likely to face lawsuits under the air pollution laws from EPA, states, and environmental organizations.
Even if a farm decides not to participate in the national study funded by the agreement, EPA can still order the farm to test its own emissions. An emissions study can cost a half million dollars or more per farm.
Civil penalty. Like most negotiated compromises, this agreement contains both favorable and unfavorable provisions. On the negative side, EPA insisted that participating farms pay a civil penalty in addition to the $2,500 study fee. A farm must pay a penalty of $200 if it has fewer than 700 cows, $500 if between 700 and 6,999 cows, and $1,000 if 7,000 or more cows.
This penalty must be paid even if the study ultimately determines the farm did not violate the law.
Can’t challenge. Participating farms must also agree not to challenge any emissions data from the study, even if they disagree with the results.
If the farm emits 250 tons or more of particulate matter (dust), it will have to submit an application for a permit. In that event, the farm will probably have to install pollution control equipment or adopt best management practices to reduce emissions.
Of course, any farm with 250 tons or more of particulate emissions will be subject to these requirements, even if it does not sign the agreement.
Threshold unknown. At this time, no one knows how large a dairy farm has to be in order to produce regulated amounts of air emissions. While the water pollution laws apply to all dairy farms with 700 or more cows, the threshold for regulating air emissions might be lower or higher than that size.
Accordingly, a farm with fewer than 700 cows cannot assume that it will not be liable under the air pollution laws.
Court protection. On the positive side, participants are released from much larger penalties that could apply if their emissions are found to exceed regulated amounts. They also avoid the prospect of receiving expensive testing orders.
In addition, EPA cannot sue them for any past air pollution violations or violations occurring during the next four years while the study is being completed and evaluated.
Any farm needing a permit will be allowed two years to obtain it without penalty.
Not complete. The agreement does not expressly prohibit a state environmental agency or an environmental organization from bringing a lawsuit against a participating farm. However, a state or environmental group may have less incentive to sue a participating farm.
Unless future court decisions interpret the reporting requirements differently than past decisions, environmental organizations and other citizens will not be able to bring these actions against participating farms.
While the agreement does not prevent them from suing farms for not having permits, there is currently inadequate data for them to prove that the farms produce enough emissions to need permits.
The agreement does not affect a neighbor’s ability to file a case against a farm for nuisance or personal injury. Therefore, a neighbor could still argue that odors or air emissions from a farm have caused discomfort or health problems.
Dairy co-ops. A dairy cooperative can also sign the agreement to prevent lawsuits against the cooperative for air pollution violations occurring at its members’ farms.
Signing the agreement will not make the cooperative responsible for ensuring compliance with the air pollution requirements – that is still the responsibility of the farm. But the cooperative will lose its protection under the agreement if the farm does not comply, so it is best if the cooperative and the farm reach an understanding that the farm will comply with all requirements found to be applicable once the emissions study is finished.
Anyone who decides to participate must send a signed form to EPA by July 1, 2005.
(Jack Van Kley is an environmental attorney with Jones Day in Columbus. He can be reached at 614-281-3875.)
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Shelter in ‘Safe Harbor’