You may have heard that the Environmental Protection Agency (EPA) is offering animal feeding operations (AFOs) in the swine, dairy, broiler chicken, egg, and turkey industries a one-time opportunity to participate in an agreement that offers legal protection against potential past federal air law violations. And, as part of the agreement, an extensive nationwide study will take place to generate data for determining emissions from all major types of AFOs in all geographic areas where they are located.

Background Information on the Air Compliance Agreement
Ammonia (NH₃), hydrogen sulfide (H₂S), particulate matter (PM, a.k.a., "dust") and volatile organic compounds (VOCs) are known to be released from animal housing and/or manure storages. Ammonia and hydrogen sulfide are classified as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). Hydrogen sulfide, PM, and VOCs are regulated under the Clean Air Act (CAA).

The EPA and USDA commissioned the National Academy of Science (NAS) to study the issue of livestock emissions and review existing data. The NAS concluded in their report that reliable data did not exist and recommended an approach that would generate reliable data.

EPA currently has the authority on a case-by-case basis to require AFOs to monitor their air emissions and come into compliance with applicable federal laws. However, this process has proven to be difficult and time consuming, partly due to the uncertainty regarding emissions from AFOs. This can also be quite costly to individual producers. Groups such as the National Pork Producers Council and the United Egg Producers, along with university officials, began negotiating this consent agreement about three years ago as a result of the lack of reliable emissions data for livestock operations, as well as the expensive individual lawsuits and enforcement issues faced by livestock producers.

EPA believes that the Air Compliance Agreement and the associated National Emissions Monitoring Study will be the quickest and most effective way to address the current uncertainty regarding emissions from AFOs and to bring all participating AFOs into compliance with all applicable regulatory requirements. This method will also allow participating producers to pool their resources to reduce the cost of measuring emissions and ensure compliance with all applicable environmental regulations in the shortest amount of time. The extensive nationwide Emissions Monitoring Study will be conducted to collect and analyze data that AFOs can use to determine their duty to apply for permits under the CAA or report emissions under CERCLA or EPCRA. The study will be conducted by university scientists. AFOs that sign consent agreements may be asked to make their operation(s) available for emissions testing under the nationwide monitoring study.

Because most producers do not know what their potential emissions may be and because EPA believes that everyone has a duty to know what their emissions are, the agreement provides legal protection to participating producers via a "civil penalty" for past non-compliant emissions.

Questions and Answers

• Am I required to participate in the Consent Agreement?
  No. Participation in the Consent Agreement is voluntary, so it is your decision whether or not to sign up. Signing a consent agreement is not an admission that your farm's past air emissions violated any law.

  The opportunity to sign up will only be offered once and only until July 1, 2005.

  EPA does reserve the right to exclude some producers from participating in the consent agreement. It is likely that EPA will exclude any farm that is currently involved in legal action with EPA over current air laws.

• Who is eligible to participate in the Consent Agreement?
  Animal feeding operations (AFOs) in the egg, broiler chicken, turkey, dairy, and swine industries that meet the definition of an AFO under the federal Clean Water Act (CWA) may participate.

  The federal CWA defines an AFO as "A lot or facility where animals are confined and fed for a total of 45 days or more in any 12-month period and crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season."

  Open-air feedlots, such as cattle feedlots, are explicitly excluded from the agreement.

  For pasture-based AFOs, manure storages qualify as emission units, making these storage and treatment components of the operation eligible to participate in the consent agreement.

• What is the benefit of participating in the Consent Agreement?
  Participants are protected from state and federal liability for potential past emissions, as well as potential emissions during the two-year monitoring study and during the two-year data analysis and policy development period that follows the study.

  Once a participating producer complies with all reporting and/or permit requirements resulting from the monitoring study, the relief from potential past air emissions becomes permanent.

  By signing a consent agreement, you are receiving no protections from nuisance or odor lawsuits under state or local law.

• What is the risk associated with not participating in the Consent Agreement?
  By not participating in the consent agreement, a producer is forgoing the legal protections against potential past emissions violations and may be subject to legal actions if the results of the nationwide monitoring study indicate that his AFO is required to comply with federal environmental laws.

  Most producers are not aware of their vulnerability to legal actions due to these environmental laws. In recent years, several citizen, state and EPA lawsuits have resulted in consent agreements and court decisions involving large monetary penalties and requirements for corrective actions. These environmental laws allow groups to sue for emissions violations that occurred in the past even though AFO managers were not aware that these laws could be applied to their farms. These potential fines and disruption of normal business make the risk of past and current emissions violations a threat to doing business.

• Should I participate in the Consent Agreement?
  The decision whether or not to sign up is yours.

  The following table illustrates the minimum operation size for some production scenarios that have the potential to release emissions at levels that could require a CAA permit or CERCLA or EPCRA reporting (based on available data).

  Type of Operation	No. of Animals or Barns
  Swine (weighing 55 lb. or more each)	1,000 head
  Swine (weighing less than 55 lb. each)	3,000 head
  Mature Dairy Cows in Confinement Housing	100 cows
  Laying Hens	30,000 birds
  Broiler Chickens	2 barns
  Turkeys	10,000 birds

• How much will it cost me to participate in the Consent Agreement and Monitoring Study?
  Two expenses must be paid to participate in the consent agreement: a civil penalty and a monitoring study fee (swine producers, see note below). Both are one-time fees.

  Civil Penalty
  In order to receive the legal protections being offered by the EPA, a civil penalty must be paid by each participating AFO. The penalty is assessed based on the size of the AFO as illustrated in the following table.

  If You Have...	Civil Penalty
  One Farm below the large CAFOa threshold	$200
  Two or more farms below large CAFOa threshold One or more farms at the large CAFOa threshold, or up to 10X the large CAFOa threshold	$500 per Farm
  One or more Farms with more than 10X the number of animals defining the large CAFOa threshold	$1000 per Farm
  Penalty Not To Exceed...
  For 1-10 Farms	$10,000
  For 11-50 Farms	$30,000
  For 51-100 Farms	$60,000
  For 101-150 Farms	$80,000
  For 151-200 Farms	$90,000
  For more than 200 Farms	$100,000

  ^aAn AFO is defined by EPA as a Large CAFO if it stables or confines as many or more than the numbers of animals specified in any of the following categories:

  • 700 mature dairy cows (whether milked or dry)
  • 2,500 swine (each weighing 55 pounds or more)
  • 10,000 swine (each weighing less than 55 pounds)
  • 55,000 turkeys
  • 30,000 laying hens or broilers (if the AFO uses a liquid manure handling system)
  • 125,000 chickens other than laying hens (if the AFO uses other than a liquid manure handling system)
  • 82,000 laying hens (if the AFO uses other than a liquid manure handling system)

  Monitoring Study Fee
  Each sector of the livestock industry must fund their portion of the emissions monitoring study.

  The pork and egg production industries were involved in designing the emissions monitoring study and will pay for their respective portions of the nationwide study with Check-off dollars. Therefore, swine and egg producers will not have to contribute to their monitoring study funds unless the cost of one of these studies exceeds the amount contributed by their industry.

  So far, the dairy, broiler and turkey industries have not put funding in place for their species' monitoring. If no formal pooled funding mechanism is developed for these species, EPA will expect individual dairy, broiler and turkey producers who sign the consent agreement to pay the lesser of:

  • $2,500 for each Farm listed in their Agreement; or
  • Their pro rata share of the amount needed to fully fund their sector's portion of the study (essentially determined by how many producers sign up within each animal sector).

  If there are not a large enough number of dairy or meat bird farms signed up to fund the study (perhaps about 400 or 500 farms per species) and if an industry-wide pooled funding mechanism can not be developed, EPA will probably not approve the consent agreements submitted by producers for those species.

  If you are a dairy or meat bird producer, contact your producer association to learn whether there will be assistance available for funding the monitoring study within your animal sector.

• Why do I have to pay a civil penalty if I have not been found guilty of violating any air laws?
  According to EPA, "A civil penalty was included in the AFO Air Compliance Agreement so that courts will recognize it as a standard compliance agreement... and accord it the usual legal status."

  Basically, the reason for the civil penalty is this: Because it is unknown whether any individual producer has violated any air laws prior to collecting the data from this study, the civil penalty is the only reasonable way to "buy" retroactive legal protection if the study reveals that an operation has been violating air laws. The idea is that, if the study reveals that violations occurred in the past, a penalty has already been paid and legal protections exist for those past violations.

• How do I submit a Consent Agreement to EPA?
  A copy of the consent agreement may be obtained from EPA's website at: http://www.epa.gov/compliance/resources/agreements/caa/cafo-agr-050121.pdf

  You may also contact the MU Commercial Agriculture Program to have a paper copy mailed to you.

  Sign the Air Compliance Agreement on p. 24, complete Attachment A of the agreement (included with the consent agreement), and send the document to the address contained within the consent agreement. The address is also available on the website indicated above.

• Do I need to pay the civil penalty and monitoring study fee when I send my consent agreement to EPA?
  No. The civil penalty will be due within 30 days after you receive a signed ("executed") copy of your agreement from EPA. No later than 30 days after the end of the sign-up period, EPA will decide whether to proceed with all, part, or none of the monitoring study (based on public comments and receipt of consent agreements) and will sign the Air Compliance Agreements and forward them to EPA's Environmental Appeals Board for final approval. A copy of the "executed" agreements will then be returned to producers. The monitoring study fee will need to be paid separately from the civil penalty and producers will be notified as to how much they must contribute to their industry's monitoring study fund.

• I am a contract grower. How do the Consent Agreement and Monitoring Study apply to me?
  The Air Compliance Agreement includes provisions that will allow both integrators and contract growers to participate. These provisions also apply to AFOs that produce milk under contract with a cooperative or that supply heifers to dairy herds owned by a separate entity.

  The process is two-fold for contract grower operations. Contract growers may be "signed up" by their integrator so that the integrator obtains the legal protections for the contract grower farm(s). The integrator sign-up does not automatically provide legal protection to the individual contract grower. Rather, the contract grower must also sign up individually to obtain the Agreement's legal protections for his farm(s). In this situation, both the integrator and the contract grower are responsible for paying the civil penalty in order to receive the legal protection of the Agreement. To retain the legal protections of the consent agreement at the conclusion of the monitoring study, contract growers must comply with any and all applicable requirements associated with the Agreement.

  Participating contract growers are excused from contributing to the monitoring study fund if their integrator has agreed to provide the monitoring study fee for the contract grower's farm(s).

  If you are a contract grower, contact your integrator to discuss your options for participating in the Compliance Agreement.

• What happens once the emissions monitoring study is complete?
  Within 18 months of the completion of the study (and on a continuing basis as data is analyzed), EPA will publish "look-up charts" (emissions-estimating methodologies) for producers to estimate emissions from their operations.

  As data is published, producers must do one of two things for each source or facility owned: 1.) certify to EPA in writing within 60 days that the data reveals that no CAA permit or CERCLA or EPCRA notifications are required; or 2.) submit all required permit applications or reports within 120 days.

  EPA expects to apply the emissions estimating methodologies to all AFOs, whether or not they participate in the Air Compliance Agreement.

• What does it take to comply with the CAA, EPCRA and CERCLA?
  Generally speaking, compliance with CERCLA and EPCRA involves notifying EPA's national response center if a facility exceeds the daily emission threshold (100 lbs per day) for ammonia or hydrogen sulfide.

  The CAA is more complex but, in general, compliance will involve applying for an air permit. It is possible that some farms, based on size or geographic location, may eventually be required to install "emission controls" as a requirement of their CAA permit. However, because proven "emission control" technology does not currently exist for animal production emission sources, this likely will not be the case for some time.

• What if I find out that I am not in violation of CERCLA, EPCRA or the CAA after the study ends? Do I get my civil penalty payment back?
  No. The purpose of the civil penalty payment is to secure the legal protections of the consent agreement and it is non-refundable. Regardless of the outcome of the study (i.e. whether or not you find that you need to file reports or obtain a permit), the legal protections of your consent agreement are still valid.

For more information on the Commercial Agriculture program, contact Rex Ricketts, 573-882-4553.