EPA’s Air Quality Consent Agreement is Here!

The concerns are regional and national in scope and include but are not limited to ammonia, its redeposition and the products it forms after being released to the air. Court decisions have determined that existing federal air regulations apply to AFOs and the Air Quality Compliance Agreement is part of EPA's response. There are a lot of unknowns including what size of dairy farm may be impacted and where and how emissions will be measured. Emissions from field application of manure are not included in this agreement.

Last spring and summer numerous articles were written about the impending Air Consent Agreement http://nutrient.psu.edu/. Nothing materialized and with the presidential elections at the forefront of news, the consent agreement appeared to fizzle. Now that elections are over and Washington is back to business as usual, EPA is publishing the Animal Feeding Operations Consent Agreement in the Federal Register, including more details on how this order will be implemented. Publication is expected the first week of February. The Federal Register submission, copies of the agreement and a brief fact sheet can be found at www.epa.gov/airlinks/airlinks1.html.

As a refresher, AFOs that choose to participate in the Air Compliance Agreement and meet all of its conditions will receive from EPA limited release and covenant not to sue from liability for certain past and on-going Clean Air Act (CAA), CERCLA and EPCRA violations. This will cover an AFOs liability for failing to comply with certain provisions of CERCLA, EPCRA and the CAA up to the time the AFO reports its releases and applies for the required permits based on the compliance agreement. The air pollutants of concern are ammonia and hydrogen sulfide regulated under CERCLA and EPCRA. Hydrogen sulfide, particulate matter and volatile organic compounds are regulated under the CAA.

There will be a 30-day comment period from the date of publication of the order in the Federal Register. The emphasis during the comment period is on implementation of the agreement. Producers interested in participating in the Air Compliance Agreement program will have 90 days from the date of publication in the Federal Register to sign-up. This process is completely voluntary. AFOs that choose to participate will agree to pay a civil penalty, which is based on the AFO size. Dairy AFOs that are not concentrated animal feeding operations (CAFO) will pay a fee of $200 and most CAFOs will pay $500. In addition, participating AFOs will be responsible for paying up to $2500 per farm into a fund to conduct a nationwide emissions monitoring study. This study will be conducted over a 2-year period beginning in 2005. Within 18 months after the conclusion of the monitoring study, EPA will publish the emissions data for the AFOs in the eligible animal groups.

When EPA publishes the emissions estimating methodologies, this will trigger the obligation of participating AFOs to determine their emissions and to comply with all applicable Clean Air Act requirements. At this time, EPA expects to apply these emission-estimating methodologies to all AFOs, whether or not they participated in the Air Compliance Agreement.

One concern many in the animal industry had was how EPA defined "source." It is stated in the final order that the Air Compliance Agreement does not define the scope of the term "source" as it relates to animal agriculture and farm activities. They will provide guidance on this issue at the conclusion of the monitoring study.

The Air Compliance Agreement is happening now. There are still many uncertainties and questions to be answered. Producers should find out as much information as possible and make the decision if signing-up is right for their operation. Whether a dairy farm chooses to participate in or ignore this agreement is a significant decision that can potentially have a long-term impact on an operation. Unfortunately one of the biggest unknowns is what size of dairy will ultimately be covered or affected. Heifers, calves and dry cows are also included. The swine and egg layer commodity organizations are actively participating in this project and will be aiding their producers in navigating through this confusing issue. There does not appear to be any similar activity among dairy related producer groups at this time.

Virginia Ishler, Extension Associate, Penn State Dairy Alliance, Nutrition Management and , PSU Dairy Unit Manager, Dairy Alliance is a Penn State Cooperative Extension Initiative, and , Robert E. Graves, Professor, Agricultural and Biological Engineering Department