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Animal Feeding Operations Air Quality Compliance Agreement Information Sheet
March 11, 2009
- Background
- Primary Goals of the Air Compliance Agreement
- Key Air Compliance Agreement Provisions
- Air Compliance Agreement Totals
- National Air Emissions Monitoring Study
- Key Future Dates and Events
- Chronology of Past Key Dates and Events
Background
- In December 2001, EPA and the U.S. Department of Agriculture asked the National Academy of Sciences to review and evaluate the scientific basis for estimating air emissions of various pollutants from animal feeding operations (“AFOs”).
- In 2002, the National Academy of Sciences issued a report emphasizing that scientifically credible methodologies for estimating AFO emissions needed to be developed.
- In 2002, EPA and industry representatives began discussions on a proposed Agreement that would facilitate the development of these methodologies.
- Throughout 2002-2004, EPA met with many groups to discuss the proposed Agreement, including (1) agricultural industry representatives; (2) state and local government officials; (3) environmental organizations; and (4) citizen groups.
- EPA announced the AFO Air Compliance Agreement (“Agreement”) on January 21, 2005. EPA solicited public comments on the Agreement through May 2, 2005, and the Agreement’s sign-up period ended on August 12, 2005.
- EPA received more than 2,600 Agreements from operators representing a cross-section of the agricultural livestock industry (i.e., swine, dairy, and poultry (layers and broilers)).
- EPA evaluated the Agreements, organized them by animal type, and submitted them to the Agency’s Environmental Appeals Board (“EAB”) for review and approval.
- After a hearing regarding the Agreements, which included OECA and environmental and industry representatives, the EAB ratified the first 20 Agreements on January 27, 2006. The EAB ratified a total of over 2,500 Agreements.
Primary Goals of the Air Compliance Agreement
- Reduce air pollution
- Ensure compliance with applicable Clean Air Act, Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), and Emergency Planning and Community Right-to-Know Act (“EPCRA”) provisions
- Monitor and evaluate AFO emissions
- Promote a national consensus on methodologies for estimating AFO emissions
Key Air Compliance Agreement Provisions
- Participating AFOs are required to:
- Pay a civil penalty, ranging from $200 to $100,000, depending on the size and number of AFOs signed up under their Agreements;
- Pay up to $2,500 into a fund for the nationwide air emissions monitoring program;
- Make their facilities available for monitoring;
- Apply for all applicable air permits and comply with permit conditions;
- Install Best Available Control Technology (“BACT”) or control technology meeting the Lowest Achievable Emission Rate (“LAER”) on all sources that exceed the major source threshold for their area; and
- Report any qualifying releases of Ammonia (NH3) and Hydrogen Sulfide (H2S) as required by Section 103 of CERCLA (which is no longer required as of January 20, 2009) and Section 304 of EPCRA (which is only required for farms stabling or confining more animals than the threshold amounts for large CAFOs under the Clean Water Act’s implementing regulations as of January 20, 2009).
- AFOs that satisfy these requirements will receive, from EPA, a covenant not to sue for past violations of:
- Clean Air Act permitting requirements in Title V, and Title I Parts C and D Prevention of Significant Deterioration/New Source Review, and State Implementation Plans arising from emissions of Nitrogen Oxides (NOx), Hydrogen Sulfide (H2S), Volatile Organic Compounds (VOCs), or Particulate Matter (PM) from animal confinement structures and agricultural livestock waste lagoons; and
- CERCLA Section 103 and EPCRA Section 304 hazardous substance reporting requirements arising from releases of Ammonia (NH3) and Hydrogen Sulfide (H2S) from animal confinement structures and agricultural livestock waste lagoons.
- Conditions and limits of the covenant not to sue
- EPA will continue to prosecute cases that may present an imminent and substantial endangerment to human health or the environment.
- The covenant not to sue applies to past violations and will terminate after a short period following the completion of the monitoring study and EPA’s publication of emission estimating methodologies.
- The covenant not to sue covers only violations related to emissions from agricultural livestock and agricultural livestock waste.
- The covenant does not cover emissions from generators or other internal combustion engines, waste-to-energy systems, and the land application of animal waste. The covenant not to sue also does not cover emissions from sources not participating in the Agreement.
- The covenant not to sue does not affect permits required for new construction or modifications of existing AFOs.
- The covenant not to sue will be nullified if an AFO fails to comply with state nuisance final orders relating to air emissions.
- AFOs that are subject to federal or state Clean Air Act, CERCLA Section 103 or EPCRA Section 304 enforcement actions may not be eligible to enter into the Agreement.
- Additional Protections and Benefits
- AFOs that install waste-to-energy systems in compliance with all applicable permitting and control requirements will get an additional 180 days to apply for air permits for their emissions from agricultural livestock and livestock waste subject to certain conditions.
- The Agreement will complement ongoing state and local efforts to promote research into AFO air emissions and to improve air quality.
Air Compliance Agreement Totals
- 2,588 total Respondents:
- 41 Respondents predominantly raise broilers/chickens;
- 216 Respondents predominantly raise laying hens;
- 470 Respondents predominantly raise dairy cows; and
- 1,861 Respondents predominantly raise swine.
- 13,843 total farms are covered by the Agreement:
- 568 dairy farms/AFOs;
- 2,693 layer farms/AFOs;
- 4,830 swine farms/AFOs; and
- 5,752 broiler farms/AFOs.
- EPA assessed a total of $2,786,700 in civil penalties under the Agreement.
National Air Emissions Monitoring Study
- Based on EPA criteria, an independent organization selected monitoring sites that represent major animal groups (i.e., swine, dairy, and poultry (broilers and layers), different types of operations, and different geographic regions. EPA ensured that farms selected for monitoring are representative.
- Monitoring will take place at 25 sites on 21 farms in 10 states (CA, IN, IA, KY, NY, NC, OK, WA, TX, WI).
- Monitoring began in the spring of 2007 on a rolling basis, and will occur at the selected lagoons and barns for approximately 24 months. To date, EPA has received raw data from the first year of monitoring. EPA’s Office of Air Quality Planning and Standards has conducted technical systems audits at every barn monitoring site to ensure the monitoring is in conformance with the study’s quality assurance project plan.
- The agreement requires monitoring of four pollutants likely to be emitted from animal housing and manure storage facilities at animal production farms: particulate matter (PM), hydrogen sulfide (H2S), volatile organic compounds (VOCs), and ammonia (NH3).
Key Future Dates and Events
- Winter 2009 / spring 2010: anticipated completion of the monitoring study
- Late summer 2011 (within 18 months of the monitoring study’s conclusion): EPA anticipates publishing emission-estimating methodologies
- Where the methodologies indicate that a participating farm does not require any permits or trigger any reporting requirements, that farm has 60 days after the methodologies’ publication to certify its compliance with the applicable laws.
- Where the methodologies indicate that a participating farm requires permits, that farm has 120 days after the methodologies’ publication to apply for any necessary permits.
- The statute of limitations for the Agreement’s covenant not to sue will be tolled until the earlier of 120 days after a Respondent certifies compliance or certifies that it has applied for any necessary permits, or December 31, 2011.
Chronology of Past Key Dates and Events
- January 31, 2005 Federal Register (“FR”) notice: EPA announces that the Agreement sign-up period will run 90 days from the publication date (May 1, 2005); EPA will receive comments on the Agreement for 30 days (March 2, 2005)
- March 30, 2005 FR notice: EPA announces it is re-opening the comment period from April 1, 2005, until May 2, 2005; EPA extends the sign-up period from May 2, 2005, until July 1, 2005
- July 12, 2005 FR notice: EPA extends the sign-up period from July 1, 2005, to July 29, 2005
- July 12, 2005 FR notice: EPA responds to comments on the Agreement and makes no changes to the original Agreement
- August 3, 2005 FR notice: EPA extends the sign-up period from July 29, 2005, to August 12, 2005
- August 12, 2005: sign-up period ends
- January 27, 2006: EAB approves the first 20 Agreements
- Spring 2007: nationwide monitoring study begins on a rolling basis
- July 17, 2007: D.C. Circuit Court of Appeals dismisses lawsuit challenging the Agreement