Comments and Testimonies

MARCH 2, 2005

COMMENTS ON US EPA WAIVER FOR CERTAIN ANIMAL FEEDING OPERATIONS (Docket ID No. OAR-2004-0237)

Comments of MAELC and Clean Air Council
These comments are submitted by Mid-Atlantic Environmental Law Center, on behalf of itself and Clean Air Council. The Mid-Atlantic Environmental Law Center ("the Center") is a not-for-profit environmental law firm with offices in Wilmington, Delaware, that provides legal services to public interest organizations in environmental matters. The Center counsels clients, educates the public, submits comments to agencies, and litigates cases when necessary. Clean Air Council ("the Council") is a non-profit environmental organization with offices in Philadelphia and Harrisburg, Pennsylvania, and Wilmington, Delaware. The Council uses education, advocacy and government oversight to protect everyone's right to breathe clean air.

I. The Animal Feeding Operations Industry and Environmental Impacts
Animal Feeding Operations ("AFO's") are livestock production facilities characterized by a large number of animals kept in tight quarters, typically in containment buildings and grown rapidly in an industrial-type manner. Whether a livestock production facility qualifies as a CAFO is defined in Clean Water Act regulations. These facilities' impact on the environment has already been recognized in the realm of water quality, where Nutrient Management Plans are required of such facilities in order to lessen their heavy burden on nearby waters. EPA has begun to pay greater attention to this industry. In a document entitled, Animal Feeding Operations, EPA-821-R-03-001 at 4-3 (2002) ("Development Document"), http://cfpub2.epa.gov/npdes/afo/cafodocs.cfm., EPA describes the nature of these industrial-type methods, which over the last decade, have come to dominate the livestock production industry. What the Development Document also makes clear is the increasing consolidation of animal agricultural operations into larger and larger facilities run by fewer and fewer companies. The AFO industry bears little resemblance to the family farm as it has been known. Further, the revenue involved is massive. According to the EPA's document, poultry and swine production revenue now exceeds $30 billion.

II. Air Pollutants From AFO's and Health Impacts
It should be no surprise that AFO's emit many harmful air pollutants in significant amounts. This much has been made clear by the EPA's Buckeye Egg Farm enforcement action wherein the Defendant was found to emit 700 tons of particulates and 375 tons of ammonia, and by a 2002 Iowa Air Quality Study of AFO's. As stated within the EPA's Animal Feeding Operations Consent Agreement and Final Order ("the Order"), AFO's emit pollutants such as ammonia, volatile organic compounds ("VOC's"), particulate matter ("PM") and hydrogen sulfide. These pollutants have a significant negative effect on public health. Both PM-10 and PM2.5 are criteria pollutants under the Clean Air Act. Likewise, VOC's are a precursor of ozone, which is also a criteria pollutant. Ammonia is regulated as a hazardous substance within CERCLA 42 U.S.C § 9602; 40 C.F.R. §302.4 and EPCRA 42 U.S.C §11002; 40 C.F.R. §355.40.

All of these pollutants can cause significant harm to human health. For example, fine particulate matter (PM2.5) can cause premature death. The California Department of Environmental Protection in conjunction with the American Lung Association reported that deaths linked to PM are now at levels comparable to traffic accidents and annually 6,500 people die as a result of long term exposure to PM. Negative health effects of ozone include exacerbation of asthma, triggering of the onset of asthma, and chronic bronchitis, especially in children and the elderly. Exposure to ammonia can cause throat and lung irritation and long term respiratory problems may occur. Hydrogen sulfide is a regulated pollutant under the Clean Air Act. Health effects of exposure include nausea, eye and throat irritation, dizziness, headaches and breathing difficulties.

III. CAC and MAELC's Interests
Given the clear, adverse air quality impacts of the industry, the order is of great concern to the Council and the Center. The Center is based in the State of Delaware, which hosts a significant number of Animal Feeding Operations. In addition, Animal Feeding Operations are a major presence in other states which the Center serves, such as Pennsylvania and Maryland. The Council strives to improve air quality in Delaware and in Pennsylvania, where it has members. The Iowa Study Final Report and the Buckeye Egg enforcement action case permit the reasonable conclusion that many AFO's are major sources of air pollution. Yet it is clear that AFO's employ little if any air pollution controls. The order has arisen following recommendations from the National Academy of Sciences pertaining to AFO air emissions. The Center and the Council contend the EPA has overstepped these recommendations and abdicates its responsibilities to implement and enforce the environmental laws by permitting a de facto waiver of liability for certain AFOs under this agreement.

IV. EPA's Order Is Arbitrary and Capricious
The Center and the Council contend that EPA's decision to relieve all signatory AFO's of liability for CAA, CERCLA and EPCRA violations is arbitrary and capricious. This one-size-fits-all approach is inappropriate for two reasons.

A. Many Participating AFO's Would Have Significant Past and Present Violations and EPA Lacks Authority to Release Them From Liability
First, because it is likely that many AFO's that will participate in the Order would otherwise be required to comply with applicable requirements and have not done so. More specifically, major sources are obligated to obtain permits under Title I, Part C or D, and Title V of the CAA. The Clean Air Act ("CAA") requires that any facility that emits more that two hundred and fifty tons per year of any air pollutant or has the potential to do so, must obtain a permit. CAA 42 U.S.C. § 7479(a). Furthermore, criteria pollutants such as PM-10, PM2.5, and Nitrogen Oxides have major source thresholds of 100 tons per day or less, depending on the attainment status of the region where the source is located. EPA's intention to provide liability waivers to facilities which may well be significant violators of the law undermines the purpose of the Act, the compliance and enforcement programs generally, and the public's confidence in the integrity of environmental regulation.

Major source AFO's should have applied for NSR permits requiring installation of Best Available Control Technology ("BACT") or even controls satisfying the Lowest Achievable Emission Reduction ("LAER") standard. These particular AFO's could be found in violation for each day of operation since tripping the major source threshold, at the risk of a maximum penalty of $27,500 per day, per pollutant for which they are a major emitter. EPA abuses its discretion by effectively changing the Clean Air Act and waiving permit requirement under Title I and Title V. The Act states that all major sources must obtain permits and EPA lacks the authority to exempt sources. 42 U.S.C. § 7502(c)(5); 7475 and 7661(a).

B. EPA's Action Is In the Nature of a Rulemaking
Second, this consent agreement is a rulemaking masking as adjudication. Since it is open to any AFO, and EPA itself expects as many as 4,000 facilities to participate, the Air Compliance Agreement is effectively a sector-wide treatment that EPA seeks to accomplish without adhering to the notice and comment rulemaking requirements of the Administrative Procedures Act, 5 U.S.C. §§ 551-59 (1976). For this reason alone, EPA should withdraw this action. Nor does the ability to comment on this final order rectify the APA violation, which calls for comment on proposals. Further, it is fully apparent that EPA will not consider the public comment, since it is running the sign-up period for facilities under the ACA concurrently with the comment period.

This consent agreement illegally hinders federal environmental law. A person in charge of a facility must report any release of a hazardous substance in excess of 100 pounds per day. CERCLA, 42 U.S.C. § 9603(a). EPCRA requires notification of any release of a reportable quantity of a hazardous substance subject to the notification requirement found in CERCLA. 42 U.S.C. § 11004.

Accordingly, the consent agreement is a poor exercise of the EPA's obligation to protect people and the environment. The EPA should not allow any facility to ignore federal regulations. Allowing AFO's to ignore existing environmental regulations and existing violations is not the solution. The Center and the Council believe relieving AFO's from existing legal environmental obligations will diminish the integrity of existing law. Thus, EPA should refrain from implementing this order.

V. The Monetary Penalties Are Inadequate
Major source AFOs can have a very detrimental effect on ambient air quality and regional abilities to meet the health-based standards, as well as an especially egregious impact on quality of life for persons living in proximity to the extreme malodors attributed to many AFOs. Given such impacts, the prospect of erasing millions of dollars of civil penalties in return for the few hundred dollars EPA proposes to levy is unconscionable, and contributes to our contention that the Consent Agreement is an arbitrary and capricious exercise of Agency discretion.

The presumed penalty range from $200 to $1,000 per AFO Corporation is exceedingly inadequate. Had the EPA continued to pursue appropriate enforcement actions in conformity with its regulatory duties under federal law, violating facilities would be required to pay fines orders of magnitude higher than those now contemplated. If the EPA maintains its intention to assign essentially standard penalty costs to violating AFO's within the order, the Law Center suggests that the penalty costs more closely reflect the monetary penalties within the CAA, CERCLA and EPCRA. For each violation civil penalties totaling up to $27,500 is calculated daily. 42 U.S.C. §9609(c) and 42 U.S.C. §11045(b). The EPA should ensure that a violator of any federal environmental law is held accountable for their violations. Moreover, if the EPA decides to go forward, the cost to fund the monitoring study should be remedied by increasing the participant fee from $2,500 to a greater economically feasible number. Many of the facilities that this order is meant to monitor are large corporations. The Center and the Council expect the EPA to ensure that each facility pays the appropriate costs to do an accurate and complete study.

VI. The Number of Facilities to be Monitored is Inadequate
Additionally, it seems clear that the number of AFO's to be monitored nationally, 28, is woefully inadequate to provide accurate data for all the different types of operations and climate conditions. Within the order, the EPA has indicated that emissions will be collected from egg, broiler chicken, turkey, dairy and the swine industries. Individual farms that fit any type of these industries are found throughout the country and experience various climate conditions which may have considerable impact on emissions estimates. Furthermore, different methods of operation within each animal sector can result in significant differences in emissions. Inevitably, this overly limited, EPA-approved process will not accurately reflect the emissions profile of the AFO industry. Thus, the Center and the Council believe that a larger number of farms should be included and that emission methodologies must take account of the diverse climate conditions within America.

VII. The EPA Should Control Data Collection
Lastly, the Center and the Council urge EPA to not give complete control to the Industry in coordinating and accomplishing data gathering. The purpose of the order is to develop emissions estimating methodologies to then be used by all AFO's to estimate their annual emissions. Therefore, it is imperative that the data be fair and developed without prejudice. The current plan to allow the AFO Industry to facilitate the data collection is not reasonable. The industry would have the ability to dilute the accuracy of the data collected because the industry would fund, manage and select the monitoring consultants and the science advisors. This is clearly an incentive to underestimate emission calculations so that a smaller percentage of the industry will trip the major source threshold. Such design is scientifically unsound and therefore may also be arbitrary and capricious. To preserve the integrity of the data collected, EPA must expose the collected emissions data to independent review. This will better ensure that the AFO's report their true emission levels and become subject to pollution control technologies that will protect the public's health and welfare.

VIII. Conclusion
The Center and the Council strongly believe that the order will harm public health and welfare. This order does not go far enough to protect the environment because emission violations will be permitted to continue without consequences for participating AFO's. Likewise, it is believed that the data collected will not accurately reflect the actual emissions generated for all AFO's because its limited scope imposes an essentially one-size-fits-all approach for the entire country. Moreover, the EPA may not ignore federal law by allowing participants to be shielded from responsibility for past and ongoing violations. Lastly, the monetary penalties participants are to pay are far too small to have any impact and should be increased substantially to reflect the penalties prescribed in the applicable environmental statutes.

Thank you for accepting and considering these comments. The Center and the Council urge EPA to withdraw from this consent agreement and make substantial revisions in accordance with the concerns raised herein.

Respectfully submitted,

Brian Cleghorn
Student Intern