PA Dairy Industry and the Air Emissions Consent Agreement

Recent enforcement actions and court rulings indicate that the regulatory provisions of the Clean Air Act (CAA) and reporting requirements of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Emergency Planning and Community Right-to-Know Act (EPCRA) apply to animal facilities including dairy operations.

Unlike local concerns, which usually deal with odors, these regulations cover emissions into the atmosphere, i.e., volatile organic compounds (VOCs), hydrogen sulfide (H2S), ammonia (NHe), nitrous oxides (NOx) and particulate matter (PMs0, PM2.5). An animal operation emitting any of these compounds into the air above certain limits may be required to apply for and comply with an air emission permit. Farms found to be violating these levels are liable for regulatory action since 1997.

Recently, some “citizen interest” groups have begun to initiate lawsuits against EPA and/or individual farms for noncompliance with the Clean Air Act, CERCLA, and EPCRA.

In the past few months, dairies in California and Idaho have been sued regarding air emissions and they potentially can be fined $27,500 per day. Defending against these lawsuits is expensive and time consuming. Unfortunately there is little good research data on the levels of these emissions from typical US dairy farms.

To allow monitoring and collection of air emission data and to provide limited protection to farms, EPA is about to publish the Air Emissions Consent Agreement (Safe Harbor Agreement or Air Compliance Agreement). If enacted, participating farms would pay a modest penalty and contribute funds for the collection of air emission data for typical US farms.

According to information posted on Cornell’s Pro-Dairy web site, the one time penalty assessment for CAFOs and AFOs with less than 700 mature milking cows is $200; more than 700 mature milking cows the penalty is $500; operations with more than 7,000 cows will be assessed a onetime penalty of $1,000. The challenge is how does the diverse dairy industry come together and decide if they want to participate, who would sign the agreement for the dairy industry and then raise the necessary money for the research?

Once the proposed agreement is published there will be a short period for public comment and for the industry to make the decisions, arrange for the funds and sign up interested and/or out of compliance animal operations. It should be noted that participating in this agreement is strictly voluntary.

The agreement includes a mechanism for collecting and administering the research funds and directing and coordinating this nationwide data collection. Industry will form a nonprofit corporation Agricultural Air Research Council (AARC) to collect and disburse the money necessary to do the data collection. EPA is working with Purdue University to develop procedures and direct all data collection which will be nationwide.

The proposed dairy data collection program is expected to require about $1.3 million. The swine and egg layer industry have developed programs that will be administered by their industry organizations and use check off funds to finance the research (about $7 million for swine and $3 million for egg layers). Individual producers will decide if they want to sign on to the program and will have to pay the appropriate penalties based on size of their operation.

At present, no national or regional organization for dairy has stepped forward to coordinate this issue. Also, dairy check off money cannot be used for this purpose. Because of the regulatory nature of this agreement, normal USDA channels of funding are prohibited from being used for satisfying the data collection required by the agreement. However, any reputable data that is collected by other means (university conducted research) will be an important check of EPA data and will be considered in ultimate EPA decisions.

EPA will use the information collected in the development of “improved Emissions Estimating Methods for air emissions from AFOs are in compliance with applicable CAA, CERCLA, and EPCRA requirements.” EPA will use these methods in enforcing the regulations and ultimately accessing fines and mandating compliance on the farms.

The Safe Harbor Agreement is intended to allow farms that believe they exceed the regulated emissions levels an opportunity to receive protection from EPA regulatory action until better information is in place. Currently, any operation releasing in excess of 100 pounds per day of ammonia and hydrogen sulfide would be out of compliance. Preliminary estimates suggest that dairies between 200 and 500 cows may be above the reporting thresholds for ammonia.

EPA has made it clear that the Safe Harbor Agreement is not a blanket exemption and any operation that is posing immediate danger could still be cited. Many environmental action groups are opposing this agreement, feeling that regulatory action should start immediately.

If you are concerned with this issue more information can be found at www.nutrient.psu.edu Also, contact your farm or other organization, DEP or PDA to learn what they are doing in response to this situation. The time for comments, sign-up and implementation will be short so immediate action is required. Penn State Cooperative Extension can help you find information or suggest EPA contacts so you can make an informed decision. Ultimately any action to participate in this agreement must come from the farm community.

Robert E. Graves, Professor, Agricultural and Biological Engineering Dept. and Virginia Ishler, Nutrient Management & PSU Dairy Unit Manager, Penn State Dairy Alliance