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EPA’s Air Emissions Consent Agreement Requires Careful Consideration

Posted: March 7, 2005

Signing or not signing EPA’s air quality consent agreement is an important decision for Pennsylvania dairy farmers. Producers have until May 1, 2005 to voluntarily sign the agreement. A quick review of the following questions should help you understand the importance of this opportunity.

1. What does signing the agreement mean?
The purpose of this agreement is to have both EPA and the producer voluntarily enter into the agreement to address air emissions from certain animal feeding operations that may be subject to various federal laws. It is not a citation for a violation. The agreement makes clear in its preliminary statement that participation in the agreement is not an admission of liability. It is neither an admission nor a denial that any facility is subject to any of the air quality laws in question (the Clean Air Act, CERCLA, or EPCRA) and it is not an admission that a violation of any of these laws have occurred. Signing the agreement is not an admission that an agricultural operation has been operated negligently or improperly, or that it was in violation of any federal, state or local law.

2. What does EPA want to achieve from the agreement?
EPA wants to be certain that facilities that are subject to the CAA, CERCLA and EPCRA Acts comply with them. EPA recognizes the need to conduct nationwide monitoring that will lead to development of scientific based emission estimating methods that help animal feeding operations determine if they are subject to the law and what they need to do to be in compliance.

3. What benefit applies to me if I sign the agreement?
EPA is willing to resolve questions about whether the facility has violated CAA, CERCLA and EPCRA requirements in the past and to resolve all civil liability that might exist if past actions were considered to be violations of CAA, CERCLA and EPCRA. If there is uncertainty about whether these laws apply to your situation, signing the agreement provides a measure of certainty in the terms of the agreement. You agree to do some things and EPA also agrees to do some things. You are replacing uncertainty with some degree of certainty.

4. Why do I have to pay something to be part of the agreement?
By signing the agreement you agree to pay an amount to fund the nationwide emission monitoring program and a civil penalty amount.

5. If by signing the agreement, the agreement I do not admit liability for violating any laws that might apply to me, why am I paying a penalty?
That is a very good question that those who negotiated the agreement are best prepared to answer. On one hand, by designating the amount to pay, the agreement gets EPA’s concurrence the amount is fair. On the other hand, anyone who thinks it is not fair must present information as to why it is unfair.

6. How should I think about making my decision about the agreement?
No one should make the decision for you. Only you can decide what is best for you and your business. You can think of this decision in several ways, such as it replaces uncertainty with some certainty, or the decision is really one of whether you are willing to risk unknown future liability for what the agreement offers you in return. This is a risk management decision. Is the risk of not signing greater for you than the benefit of signing? A variety of laws depend on whether you are complying with federal, state and local laws and regulations. If it determined that these laws do apply to your facility and you are not complying at that time, you may risk the loss of more than just the consequences of not being in compliance. Are you willing to accept that risk? The final decision should always be yours.

More information about the consent agreement can be found at http://nutrient.psu.edu/. Under hot topics and updates, look for the material related to the agreement including “sign-up procedure: attachment A”. This is the form that needs to be submitted to EPA prior to May 1, 2005 if a producer decides to participate.

John Becker, Professor, Agricultural Economics and Rural Sociology