6
Government Regulations and Programs

INTRODUCTION

In recent decades, Congress has enacted numerous statutes to protect the environment. Often the detailed implementation of these federal laws is governed by regulations that are authorized by statute and promulgated by the responsible administrative agency. For most environmental laws, this is the U.S. Environmental Protection Agency (EPA), established in 1970. Other agencies also have environmental responsibilities—for example, the U.S. Department of Agriculture (USDA) for soil conservation and other agroenvironmental programs and the National Oceanic and Atmospheric Administration for coastal zones. Under some federal laws, including the Clean Air Act (CAA) and the Clean Water Act (CWA), states play an important role in implementing federal regulatory measures within their territories. In addition, states have enacted independent environmental statutes and regulations, which sometimes impose standards more stringent than those in federal law.

The federal Administrative Procedure Act (APA) governs the activities of federal agencies, including the EPA. Under the APA, most agency regulations are enacted by “notice and comment rulemaking.” Under this procedure (5 USC § 553), the EPA publishes a notice in the Federal Register describing the terms or the substance of the proposed regulation; interested persons then have an opportunity to comment during a period of at least 30 days. Comments are normally submitted in writing, but oral presentations may also be permitted. After consideration of the material presented, the agency may revise and promulgate the regulation, accompanied by a “concise general statement” of its basis and purpose. When a statute requires that regulations be made “on the record after opportunity



The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs 6 Government Regulations and Programs INTRODUCTION In recent decades, Congress has enacted numerous statutes to protect the environment. Often the detailed implementation of these federal laws is governed by regulations that are authorized by statute and promulgated by the responsible administrative agency. For most environmental laws, this is the U.S. Environmental Protection Agency (EPA), established in 1970. Other agencies also have environmental responsibilities—for example, the U.S. Department of Agriculture (USDA) for soil conservation and other agroenvironmental programs and the National Oceanic and Atmospheric Administration for coastal zones. Under some federal laws, including the Clean Air Act (CAA) and the Clean Water Act (CWA), states play an important role in implementing federal regulatory measures within their territories. In addition, states have enacted independent environmental statutes and regulations, which sometimes impose standards more stringent than those in federal law. The federal Administrative Procedure Act (APA) governs the activities of federal agencies, including the EPA. Under the APA, most agency regulations are enacted by “notice and comment rulemaking.” Under this procedure (5 USC § 553), the EPA publishes a notice in the Federal Register describing the terms or the substance of the proposed regulation; interested persons then have an opportunity to comment during a period of at least 30 days. Comments are normally submitted in writing, but oral presentations may also be permitted. After consideration of the material presented, the agency may revise and promulgate the regulation, accompanied by a “concise general statement” of its basis and purpose. When a statute requires that regulations be made “on the record after opportunity

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs for an agency hearing,” the agency must follow a more formal procedure, similar to an agency adjudication with a hearing and opportunity to cross-examine witnesses. Some environmental laws prescribe “hybrid rulemaking,” which may require a public hearing (Findley, 2000). Environmental statutes often require that regulations be enacted only after careful study and application of scientific principles. For example, CAA section 112 (42 USC § 7412) governs hazardous air pollutants (HAPs) and establishes the initial list of HAPs. The EPA administrator has the obligation to review the list periodically, in light of new scientific knowledge, and to revise it by rule. The administrator must add pollutants that threaten “adverse human health effects (including, but not limited to, substances which are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise … “ (42 USC § 7412(b)(2)). Similarly, emission standards, established by regulation for categories of major sources and area sources of HAPs, must meet scientific standards (42 USC § 7412(d)). Application of good science in environmental regulation is essential to ensure both effective regulation and fairness to regulated entities as well as to withstand legal challenge. Agriculture has long enjoyed favored status under the law, and agricultural operations have been exempt from numerous federal and state laws that govern other businesses. Environmental laws and regulations also often included “safe harbors” for agriculture (Ruhl, 2000). Despite the acknowledged impact of farming on the natural environment, agriculture has been “one of the last uncharted frontiers of environmental regulation” (Ruhl, 2000). Some laws are structured so that farms escape regulatory obligations; others exempt agriculture specifically from regulatory provisions (Ruhl, 2000). Therefore many of the federal and state laws that control air and water emissions from other sources have not governed agricultural activities. Certain large animal feeding operations (AFOs), however, are subject to explicit environmental regulation under the Clean Water Act, and facilities that emit large quantities of air pollutants may be regulated under the Clean Air Act. For example, under the CWA, concentrated animal feeding operations (CAFOs; see Appendix B) are regulated as point sources of water pollution. Recent amendments to the Coastal Zone Management Act (CZMA) may impose management requirements on other livestock operations. Moreover, in recent years, large livestock operations that emit air pollutants such as ammonia (NH3), hydrogen sulfide (H2S), and particulates have been the focus of enforcement (or threat of enforcement) under the CAA. Some facilities may also be regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the “Superfund” law) and the Emergency Planning and Community Right-to-Know Act (EPCRA), which require reporting when large quantities

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs of pollutants are released. The material that follows provides a brief description of the federal laws that govern emissions from animal feeding operations. Table 6-1 provides an overview of some of the provisions that may affect animal feeding operations under these federal statutes. More detailed information about regulated pollutants under the CAA appears in Appendixes G and H. CLEAN AIR ACT The Clean Air Act (42 USC §§ 7401-7671q), as amended, is the federal statute that governs air pollution. The CAA authorizes regulatory programs, including standards for ambient air quality to protect public health and welfare, special measures for regions that have not attained those standards, operating permits for stationary sources of air pollution, control technologies for new sources of air pollution, and measures to control hazardous air pollutants, as well as other programs (this chapter does not describe every CAA program). The CAA delegates rulemaking and enforcement authority to the federal EPA, which implements the act. States play an important role in carrying out CAA provisions and ensuring that state air quality meets federal air quality standards. States normally TABLE 6-1 Overview of Federal Statutes and Their Provisions Statute Regulated Activity Threshold Impact CAA Major stationary source, 42 USC §§ 7602(j), 7661a Emits or has potential to emit 100 tpy of any air pollutant Permits, emission fees   Major source of hazardous air pollutant, 42 USC § 7412 Emits or has potential to emit 10 tpy of a HAP or 25 tpy of HAPs Emission standards, permits CERCLA Reportable releases, 42 USC § 9603 NH3, H2S: 100 ppd Reporting requirement EPCRA Reportable releases, 42 USC § 11004 NH3, H2S: 100 ppd Reporting requirement CWA NPDES point source requirements, § 33 USC 1342; 40 CFR part 122 Size or regulatory determination of CAFO status NPDES permit (state or federal)   EPA effluent limitations and performance standards, 40 CFR part 412 Size (1000 animal units) Effluent limitation guidelines and performance standards in NPDES permit CZMA Nonpoint source pollution, 16 USC § 1455b Large or small AFOs without NPDES permits Management measures in coastal zones identified by states NOTE: NPDES = National Pollutant Discharge Elimination System; ppd = pounds per day; tpy = tons per year.

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs have air pollution legislation consonant with the CAA, which authorizes state air pollution control agencies to implement the act in their territories through state implementation plans, permitting of air pollution sources, and other measures. The CAA defines “air pollutant” as “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive … substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant …” (42 USC § 7602 (g)). In a practical sense, the “criteria pollutants” and the “hazardous air pollutants” are the major focus of regulation. As one writer has noted, “[t]he centerpiece of the Clean Air Act has been the national ambient air quality standard (NAAQS) program” (Brownell, 2001). The CAA prescribes that “[n]ational primary ambient air quality standards … shall be ambient air quality standards the attainment and maintenance of which in the judgment of the [EPA] Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health” (42 USC § 7409(b)(1)). Secondary ambient air quality standards, when enacted, should be designed to protect the public welfare (42 USC § 7409(b)(2)). EPA has established primary NAAQS for the six “criteria pollutants” identified by EPA and regulated under the CAA (42 USC § 7409): sulfur dioxide (SO2), nitrogen dioxide (NO2), particulate matter (PM), carbon monoxide (CO), ozone (O3), and lead (40 CFR part 50). These national ambient standards are then implemented by state implementation plans (SIPs) and new source performance standards (NSPSs) (Weinberg, 2000). Hazardous air pollutants are pollutants that present a serious threat to human health or the environment. HAPs are identified in a statutory list (42 USC § 7412(b)) that can be modified by EPA regulation. EPA currently regulates 188 HAPs (EPA, 2002), and sources emitting HAPs are generally subject to a standard identified as MACT (maximum achievable control technology). Precursors of ozone (volatile organic compounds, or VOCs) and secondary PM2.5 (ammonia) are also considered air pollutants even though they are not listed as criteria pollutants or HAPs. A number of the air emissions produced by livestock facilities (see Appendix H) are pollutants regulated under the CAA. Role of the EPA in Implementing the CAA The U.S. Environmental Protection Agency is the federal agency responsible for implementing the Clean Air Act to “protect and enhance the quality of the Nation’s air resources” (42 USC § 7401(b)). Among its responsibilities is promulgation of regulations to implement various programs set out in the CAA (42 USC § 7601; see 40 CFR parts 50, 51, 53, 55, 60, 61, 63, 70, 71). For example, by regulation the EPA has established NAAQS for criteria pollutants and MACTs for hazardous air pollutants from major pollution sources, and NSPSs for facilities that contribute significantly to air pollution. EPA is also responsible for des-

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs ignating nonattainment areas where air quality standards have not been met (42 USC §§ 7407, 7501-7502). Part of EPA’s responsibility includes oversight of state and local air pollution control agencies (often called state air pollution regulatory agencies, or SAPRAs). The EPA must approve state implementation plans for meeting federal NAAQS or, if it does not approve a state plan, must implement its own federal plan (42 USC §§ 7407, 7410). After EPA approval, SIPs have “the effect of federal law” (Weinberg, 2000). EPA also delegates to states the authority to issue operating permits for air pollution sources, as required under Title V of the 1990 Clean Air Act Amendments (the so-called Title V operating permit program, codified at 42 USC §§ 7661-7661f; 40 CFR parts 70, 71). The Role of the States in Regulating Air Pollution The CAA delegates a significant role in regulating air pollution from stationary sources to the states (mobile source standards are normally set by the federal government [Weinberg, 2000]), and local government agencies may also assume some responsibility. State legislation normally assigns this role to state or local air pollution control agency (see 42 USC § 7602(b), which defines air pollution control agency). For example, the Texas Commission on Environmental Quality serves as the state air pollution control agency in Texas; and some large metropolitan areas (e.g., Houston) also have local agencies. In California and Arizona, local air districts regulate air pollution. In the discussion that follows, the term SAPRA includes both state and local air pollution control agencies. The CAA directs that each state has “primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained” (42 USC § 7407(a)). State provisions must be at least as stringent as federal requirements (40 CFR part 51.101). In addition to implementing federal CAA programs, many states have enacted additional air pollution provisions not required by federal law. For example, both Minnesota and Texas have state ambient air quality standards for hydrogen sulfide (Minn. Rules § 7009.0080; 30 TAC § 112.31-.34). In Minnesota, livestock production facilities are exempt from this standard while, and shortly after, manure is removed from barns or storage facilities (Minn. Stat. § 116.0713). In 1999, Colorado enacted “Regulation No. 2, Odor Emission,” with special rules for housed commercial swine feeding operations. This regulation establishes odor standards and requires approved covers for “anaerobic process wastewater vessels and impoundments” to minimize emission of odorous gases (Colorado, 1999). Other states have taken different measures, including setback requirements for large livestock operations. These state programs, however, supplement the SIPs and other measures under the CAA.

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs The State Implementation Plans A major responsibility of the state air pollution control agency is preparation and submission of the SIP, which must provide for the “implementation, maintenance, and enforcement” of the primary NAAQS standard in the state or an air quality control region in the state (42 USC § 7410(a)(1)). The SIP is a step in the translation of national ambient standards into emission limitations that will govern individual sources of air pollution. After approval by EPA, it can be enforced as both state and federal law. The CAA articulates the basic content of SIPs, while regulations (40 CFR part 51) provide detailed requirements for the state plans. In general, the CAA provides that SIPs must be enacted after notice, public hearing, and local consultation; they must be revised to comply with federal regulatory changes, technical advancements, or EPA findings of inadequacy. Most importantly, SIPs must include enforceable emission limitations and other control measures (including economic incentives), as well as schedules for compliance. A program to enforce these measures must be included. The SIP must regulate the modification and construction of stationary sources and authorize an operating and construction permit program. Major stationary sources must be required to pay a permit fee. The SIP must also prohibit emissions that will cause unlawful interstate air pollution. It must provide for appropriate measurement of ambient air quality (including air quality monitoring, if prescribed by EPA) and may have to require sources to monitor emissions. The state must have adequate personnel, funding, and authority to carry out the SIP, as well as authority for emergency and contingency plans. The plan must also comply with other specific requirements of the CAA (42 USC § 7410(a)(2)). The SIP should satisfy CAA requirements for any nonattainment areas included in the plan territory so that these areas will comply with NAAQS. The CAA imposes additional requirements for SIPs in nonattainment areas (42 USC § 7502(c)). Permits The provisions of the SIP govern individual facilities through state permitting programs. Two state permitting programs generally apply: (1) the preconstruction permit and (2) the operating permit. The preconstruction permit is required under provisions that govern the prevention of significant deterioration (PSD) of air quality in areas where NAAQS have been met (42 USC § 7475) and provisions for nonattainment areas where NAAQS have not been met (42 USC § 7503). In both PSD and nonattainment areas, the preconstruction permit requirement applies to major new sources or major modifications of an existing source. The definition of “major” differs between PSD and nonattainment areas (40 CFR part 52.51(b)(1); Brownell, 2001).

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs In addition, under the CAA provision regulating SIPs, states are to include a program for “regulation of the modification and construction of any stationary source” to ensure that NAAQS will be achieved (42 USC § 7410(A(2)(C)). States enjoy considerable flexibility in this area, but the state permit requirement may also affect minor new or modified sources (Brownell, 2001). The preconstruction permit will typically include, among other things, a description of proposed air pollution abatement systems and a determination of the allowable emission rate. Permit requirements must be particularly stringent in a nonattainment area. Under these CAA provisions, as implemented in the relevant SIP, someone who plans to construct a new AFO, feed mill, or cotton gin may have to obtain an air permit prior to construction. The CAA now requires operating permits for stationary sources of air pollution (42 USC §§ 7661-7661f). Title V of the 1990 CAA Amendments added provisions that require states to develop a comprehensive program of operating permits for most “major sources” of air pollution. EPA has authority to approve each state’s permit plan and each state-issued permit (Brownell, 2001). Permits include enforceable emission limitations and standards, a schedule of compliance, reporting requirements, and other conditions. The permit acts as a “shield” for the permittee, because permits may provide that facilities in compliance with the permit will be considered in compliance with “applicable provisions” of the CAA (42 USC § 7661c(f)). Major sources, as defined by statute and EPA regulations, pay an annual permit fee based on total emissions of regulated pollutants. Fugitive emissions are not considered in determining whether a facility is a “major stationary source” of air pollution (42 USC § 7602(j); 40 CFR part 70.2). However, once the major source threshold (100 tons per year [tpy] of any pollutant) is met, the permit fee is determined by “actual emissions” of all regulated pollutants (40 CFR part 70.9), including fugitive as well as point source emissions. This may become a serious issue for ground-level area source (GLAS) PM emissions. Because most agricultural operations are believed to be minor sources of air pollution, few agricultural facilities are required to comply with the operating permit requirement at present. Enforcement The CAA authorizes substantial penalties for violations of its provisions, including violations of the requirements imposed by permits (42 USC § 7413). The EPA administrator has authority to commence a civil action for an injunction or a civil penalty of up to $25,000 per day for each violation of certain CAA provisions. The CAA also authorizes administrative penalties, assessed after a formal administrative hearing, of up to $25,000 per day of violation (subject to a maximum of $200,000). Field citations issued for minor violations may include penalties with a maximum of $5,000 per day of violation. Moreover, knowing

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs violation of certain CAA provisions may lead to criminal prosecution, which may result in a fine and/or imprisonment. The CAA also authorizes EPA to pay an award of up to $10,000 to an individual who provides information leading to either a civil penalty or a criminal conviction. States, too, have authority to enforce CAA provisions under EPA-approved state programs. As a practical matter, enforcement against agricultural operations is often triggered by complaints when those operations are perceived to cause a nuisance. For example, the SAPRA in Texas (examples used in this section are based on the air pollution regulatory process used in Texas, other states may operate differently) may receive a complaint from a citizen alleging that an AFO is emitting a pollutant that interferes unreasonably with the complainant’s enjoyment of his or her property (i.e., causes a nuisance such as odor). If the complaint is verified by SAPRA compliance personnel, the facility is issued a “notice of violation” (NOV) and is subject to a penalty or fine for violation of the state air pollution law or regulations. The NOV often leads to a determination that the facility must decrease its rate of pollution. The facility may have violated its permit conditions by emitting more than its allowable emission rate (AER). If so, the facility must comply with permit conditions and is subject to administrative penalties. If the facility was emitting at a rate equal to or less than its AER, the AER may be decreased often requiring more efficient and costly controls. The facility’s permit may be amended to reflect the new AER and to require an improved air pollution abatement system. Abatement Strategies As a consequence of violations of state or federal standards, AFOs must respond to increasing pressures from their respective state air pollution control agencies to decrease pollutant emissions. The lack of science-based emission estimates for AFOs and other kinds of agricultural operations affects the regulatory process in several ways. The state permitting process is designed to protect the public by ensuring that pollutant concentrations downwind from agricultural sources do not violate the ambient air quality standards (the NAAQS), which prescribe averaging time periods and maximum ambient concentrations for criteria pollutants. Estimates of downwind concentrations can be obtained with dispersion (Gaussian) models, given an emission rate. A proposed facility, with its associated abatement strategies, may demonstrate that it meets the NAAQS by dispersion modeling (40 CFR part 51.160 & App. W). As part of the preconstruction permitting process, if modeling of emissions demonstrates that a proposed facility will comply with the NAAQS, the facility can receive a permit that allows emission at the modeled emission rate (the allowable emission rate, or AER). However, emission rates are often determined from emission factors. If emission factors do not exist or are incorrect, the permitting process is flawed.

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs Emission factors are also used to develop emission inventories—that is, calculations of the annual masses of pollutants emitted by different sources. These emission inventories may be used in the regulatory process if, for example, an area does not attain NAAQS for a specific pollutant and the SAPRA must amend its SIP to improve air quality. These strategies usually involve decreases of emissions from all sources of that pollutant. Thus, an incorrect emission factor may mean that the attainment strategy specified in the SIP is not effective. Particulate matter can be regulated as total suspended particulate (TSP)—that is, PM less than a nominal 40-μm aerodynamic equivalent diameter (AED), particulate less than 10 μm AED (PM10), and particulate less than 2.5 μm AED (PM2.5). The current PM10 and PM2.5 NAAQS are 150 and 65 μg/m3, respectively, for 24-hour average concentrations (40 CFR parts 50.6, 50.7). Prior to 1987, the NAAQS for TSP was 260 μg/m3, 24-hour concentration. A concentration at the property line that exceeds the NAAQS (determined by sampling and/or modeling) will result in violations of the respective state air pollution statute. When this occurs, the SAPRA may impose fines and decrease the AER established by permit. The facility will be required to install more efficient abatement systems to decrease its emission rate to comply with permit conditions. Odors and Common-Law Nuisance Litigation Because the Clean Air Act and its regulations generally rely on objective measures of pollutants, the regulatory process has not been effective in controlling odors, which are difficult to measure objectively (Grossman, 1994). Long before enactment of modern environmental statutes, common-law nuisance litigation was used to abate nuisances caused by pollution. Nuisance law has continued to be used to address odor problems from livestock facilities. Indeed, most agricultural nuisance cases have involved odor. A nuisance plaintiff may prevail if the conduct of the livestock operator interferes unreasonably with the use or enjoyment of property by other persons (private nuisance) or with the health, safety, and welfare of the public (public nuisance). Nuisance suits involve a process of judicial balancing, which considers factors that include the type of nuisance and the land use in the surrounding area. If successful, the suit may result in a court order that awards damages to the plaintiff or that forces the facility to close or change its practices (e.g., incorporate manure immediately) to minimize odor. Since the late 1970s, the states have enacted right-to-farm laws, which significantly limit nuisance suits by protecting certain agricultural operations against nuisance claims. Individual state right-to-farm statutes vary, but most protect existing agricultural operations only from nuisance claims arising from a change in condition (e.g., new residential development) in the surrounding area. Some laws protect only facilities that comply with federal and state environmental standards or that pose no threat to public health and safety. Though one right-to-farm law

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs (Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa) 1998; cert. denied sub nom. Girres v. Bormann, 525 U.S. 1172 (1999)) has been held unconstitutional, these laws mean that common-law nuisance actions are no longer always available to abate odor pollution from livestock facilities. Right-to-farm laws, however, do not prevent enforcement of federal and state environmental laws and regulations that govern livestock and other agricultural operations. CERCLA AND EPCRA The Comprehensive Environmental Response, Compensation, and Liability Act (42 USC §§ 9601-9675) authorizes programs to remediate uncontrolled or abandoned hazardous waste sites and assigns liability for the associated costs of cleanup when a responsible party can be identified. The Emergency Planning and Community Right-to-Know Act (42 USC §§ 11001-11050) establishes requirements for emergency planning and notification to communities about storage and release of hazardous and toxic chemicals. Both statutes have reporting requirements that may apply to large livestock facilities. CERCLA and EPCRA require reporting from facilities that release a “reportable quantity” of certain hazardous pollutants. The CERCLA definition of “release” (42 USC § 9601(22)(D)) excludes “the normal application of fertilizer.” (Sweeten et al. [2000] wonder if the exclusion of normal application of fertilizer from the definition of “release” would also apply to “standard practices for application of manure or wastewater (spreading or irrigation).” An EPA document (EPA, 1998a) refers to normal application of fertilizers “in accordance with product instructions.”) Under CERCLA section 103 (42 USC § 9603), the person in charge of a facility must notify the National Response Center of any release into the environment of a hazardous substance equal to or greater than the reportable quantity. Under EPCRA section 304 (42 USC § 11004(a)), a facility owner or operator must provide notice to state and local authorities of releases greater than the reportable quantity of substances deemed hazardous under CERCLA or extremely hazardous under EPCRA. AFOs do not appear in the list of sectors subject to EPCRA section 313, which governs the Toxics Release Inventory (EPA, 2000b). A “federally permitted release” (42 USC § 9601(10)) is excepted from these reporting requirements. Moreover, under CERCLA, a facility with “a continuous release, stable in quantity and rate” has less burdensome reporting obligations (42 USC § 9603(f)(2)). The CERCLA definition of “hazardous substance” (42 USC § 9601(14)) triggers reporting under both CERCLA section 103 and EPCRA section 304. That definition includes, among other substances, hazardous air pollutants listed under the Clean Air Act (42 USC § 7412). Among the reportable substances released by livestock facilities are hydrogen sulfide, ammonia, and some volatile organic compounds (Sweeten et al., 2000). The reportable quantity for both ammonia and hydrogen sulfide is 100 pounds per day (ppd) (18.3 tpy) (40 CFR part 355, App.

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs A, listing extremely hazardous substances). Substantial penalties apply for failure to report (42 USC § 9603(b); 40 CFR part 355.50). EPA has generally not enforced the reporting requirement against AFOs that release hazardous air pollutants, but CERCLA includes a broad citizen suit provision (42 USC § 9659) and EPCRA also allows citizen suits for some violations (42 USC § 11046(a)). Large livestock operations are therefore vulnerable to citizen suits for failure to comply with reporting under these statutes. In February 2002, the Sierra Club announced plans to sue a major poultry producer for violation of CERCLA reporting requirements for ammonia (ENS, 2002). Recent discussion of the definition of the exempted federally permitted release may have implications for AFOs. Specifically, in an Interim Guidance published in 1999 (64 Fed. Reg. 71614), EPA suggested that the federally permitted release exemption would apply only when the release “is subject to a permit or control regulation under a CAA program that is specifically designed to control the hazardous substance or [extremely hazardous substance] release” (64 Fed. Reg. 71618). Thus, releases at facilities that are not subject to a permit or control regulation under the Clean Air Act or a SIP would not be considered “federally permitted releases.” These facilities, including grandfathered facilities and minor sources, would be required to report releases or file a continuous release report under CERCLA and EPCRA (64 Fed. Reg. at 71617). The many animal feeding operations that operate without permits may be affected by this interpretation. Further, an independent regulatory requirement for volatile organic compounds as ozone precursors or for particulate matter would not trigger the federally permitted release exemption (64 Fed. Reg. 71618). This definition proved controversial, in part because it could have subjected AFOs to reporting requirements under CERCLA and EPCRA. In June 2000, after review of comments and court challenges (EPA’s notice of suspension of the Interim Guidance included the joint motion in National Assoc. of Mfrs et al. v. Browner (Nos. 00-1111, 00-1121, D.C. Cir., 2000) to hold court proceedings in abeyance until publication of the new Interim Guidance (65 Fed. Reg. 39615, 39616)), the EPA suspended the 1999 Interim Guidance (65 Fed. Reg. 39615). EPA finally published its new Guidance in April 2002 (67 Fed. Reg. 18899); at that time EPA also published a Guidance for CAA grandfathered sources (67 Fed. Reg. 19750). That Guidance, which focuses on emission sources regulated by the CAA, explains operation of the exemption for federally permitted releases under CERCLA and EPCRA. It operates as “a general guide to determine, on a case-by-case basis, whether an air release of a hazardous substance qualifies as a federally permitted release.” These will generally be subject to a “relevant CAA permit or control regulation” (67 Fed. Reg. 18901). The Guidance addresses VOCs, PM, NO (nitric oxide), and NO2 (in compliance with NOx limits), but does not address ammonia specifically. For minor sources, with emissions below an annual regulatory threshold limit, and thus no applicable CAA permitting requirement, the Guidance indicates that releases during normal operations “in com-

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs regulations, no AFO is considered a CAFO if it discharges only in a 25-year, 24-hour storm event (40 CFR part 122, Appendix B). EPA regulations (enacted in 1974) set effluent limitations and performance standards for feedlots with 1000 or more EPA AUs and with various types of animals and confinement configurations (40 CFR part 412). For these large operations, effluent limitation guidelines (ELGs) prescribe that there shall be no discharge of process wastewater pollutants (water used in the feedlot that comes into contact with manure, litter, bedding, or other material used in production) to navigable waters. An exception allows discharge caused by chronic or catastrophic rainfall, when the facility is designed, constructed, and operated to contain all process-generated wastewaters plus runoff from a 25-year, 24-hour rainfall event (40 CFR part 412.13). The 25-year, 24-hour standard applies to facilities using the best available technology (economically achievable) (BAT). For facilities using the best practicable control technology (currently available) (BPT), the exception applies if the facility can contain process-generated wastewaters plus runoff from a 10-year, 24-hour rainfall event (40 CFR part 412.12). Performance standards for new sources prohibit discharge of process wastewater pollutants to navigable waters, with an exception for a 25-year, 24-hour rainfall event (40 CFR part 412.15). EPA regulations governing both ELGs and NPDES permits refer to the 25-year, 24-hour rainfall event. The amount of precipitation that constitutes a 25-year, 24-hour rainfall event varies by location. In its ELGs, the EPA definition is “a rainfall event with a probable recurrence interval of once in … twenty-five years,…as defined by the National Weather Service in Technical Paper Number 40, ‘Rainfall Frequency Atlas of the United States’, May 1961, and subsequent amendments, or equivalent regional or state rainfall probability information developed therefrom” (40 CFR part 412.11(e)). For example, in Midwestern states (Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, Ohio, and Wisconsin), the 25-year, 24-hour rainfall amounts ranged from 3.5 to 7 inches (Huff and Angel, 1992). NPDES permits govern the discharge of pollutants by CAFOs, and compliance with permit requirements normally constitutes compliance with requirements of the CWA (33 USC § 1342 (a), (k)). NPDES permits can impose both technology-based effluent limitations (for CAFOs, the ELGs) and limitations based on water quality. Though permits normally incorporate the ELGs, regulators use their best professional judgment to impose stricter limitations if water quality standards cannot be met through ELGs. CAFOs that are not large enough to be covered by ELGs (those with fewer than 1000 EPA animal units) are subject to limits determined by best professional judgment (EPA, 2000c). The CWA allows states to assume responsibility for implementation of the NPDES program, provided that their NPDES requirements are at least as strict and as broad as federal requirements. At the end of 2000, 43 states and the Virgin Islands had authority to implement the NPDES program (66 Fed. Reg. 2960, at

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs 2964). Oklahoma, which has other NPDES program authority, has no authority to regulate CAFOs. In the remaining states (Alaska, Arizona, Idaho, Maine, Massachusetts, New Hampshire, New Mexico, and the District of Columbia), the appropriate EPA regional office issues NPDES permits. CAFO permits, like other NPDES permits, may be individual permits, designed for a single facility, or general permits, designed for a category of facilities. Once a general permit is approved, individual facility operators file a notice of intent to be covered by the general permit (66 Fed. Reg. 2960, at 2964-65). In March 2001, the EPA published a report State Compendium: Programs and Regulatory Activities Related to Animal Feeding Operations (EPA, 2001d), which describes the various state programs (see 66 Fed. Reg. at 2968-70 for a summary of state NPDES implementation and other regulation of CAFOs). Under current law and regulations, a relatively small number of AFOs are required to obtain NPDES permits. EPA estimates that about 12,660 CAFOs confine more than 1000 EPA animal units, but that only about 4000 CAFOs have NPDES permits (66 Fed. Reg. 2960, at 2968-69; EPA, 2001b). AFOs that are not regulated as point sources are considered nonpoint sources, which are subject to rather weak state planning programs under the CWA. Proposed Regulatory Changes Current measures that regulate CAFOs date from the 1970s. By the early 1990s, regulators had concluded that consolidation and other changes in the livestock industry required reconsideration of CAFO regulation (66 Fed. Reg. 2965). In the late 1990s, both pork producers and the poultry industry worked with EPA to develop voluntary environmental compliance programs (66 Fed. Reg. 2966). In 1998, the Clean Water Action Plan mentioned polluted runoff from agriculture as one of the serious water quality problems facing the United States (EPA and USDA, 1998). The plan recommended both that EPA publish and implement “an AFO strategy for important and necessary EPA actions on standards and permits” and that EPA and USDA “jointly develop a unified national strategy to minimize the environmental and public health impacts of AFOs.” EPA published two documents, the Draft Strategy for Addressing Environmental and Public Health Impacts from Animal Feeding Operations (EPA, 1998b) and the Compliance Assurance Implementation Plan for Animal Feeding Operations (EPA, 1998c). USDA and EPA (1999) cooperated on a Unified National Strategy for Animal Feeding Operations, which establishes a national goal (to minimize water pollution from confinement facilities and land application of manure) and performance expectations (Comprehensive Nutrient Management Plans, CNMPs) for AFOs. In January 2001, EPA published its proposed new CAFO regulations (66 Fed. Reg. 2960) that would revise both the NPDES regulations defining CAFOs and requiring permits (40 CFR part 122) and the ELGs that set technology-based

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs standards for beef, dairy, swine, and poultry CAFOs (40 CFR part 412). Proposed amendments are expected to increase the number of facilities that will be defined as CAFOs and must therefore operate under an NPDES permit. The following paragraphs highlight some of the proposed amendments. Proposed amendments have been published, with extensive commentary and analysis, (66 Fed. Reg. 2960). A summary of proposed changes appears in EPA (2001b). A clearly organized, detailed summary of proposed changes, in tabular form, can be found in EPA (2001c). Changes proposed for the NPDES CAFO regulations (40 CFR part 122) include a new definition of animal feeding operation, which would distinguish AFOs (with stabled or confined animals) from operations with animals on pasture or rangeland. AFOs would include both the production area and the land application area. Proposed regulations would amend the definition of CAFO; the EPA is considering a two-tiered structure (with the CAFO threshold set at 500 AUs) or a three-tiered structure, which would require mid-tier facilities (300 to 1000 AUs) to certify that they are not a CAFO or to obtain a permit. The proposal would eliminate the exemption providing that an AFO that discharges only in a 25-year, 24-hour storm event is not a CAFO. All CAFOs would be obligated to apply for a permit. New animal and facility types would be regulated; these include poultry operations with dry manure handling, stand-alone swine nurseries and heifer operations, and veal operations. Further, the land application area would be included in the CAFO definition, and each CAFO would be required to prepare and implement a Permit Nutrient Plan to govern land application at agronomic rates. The agricultural storm water exemption (from the CWA, 33 USC § 1362(14)) would pertain only when manure is applied under “proper agricultural practices.” EPA is considering other approaches to prevent CAFOs from using the agricultural storm water exemption. Some off-site recipients of CAFO manure would also face regulation (66 Fed. Reg. 2960; EPA, 2001b). Permitting requirements would be changed. For example, processors that exercise “substantial operational control” over contract growers would be required to apply for a permit, either alone or with other owners or operators. Co-permitting could be waived in states with effective programs for excess manure. CAFOs would be required to maintain a permit until the facility and its manure storage were properly closed. Additional permit requirements may apply if a CAFO is in an area where groundwater has a direct hydrologic connection with surface waters (66 Fed. Reg. 2960; EPA, 2001b). The proposed regulations also would change the effluent guidelines for CAFOs (40 CFR part 412). ELGs would apply to all beef, dairy, swine, veal, and poultry facilities that meet the new definition of CAFO under the amended NPDES regulation. Beef and dairy CAFOs and new swine, poultry, and veal CAFOs would have to determine whether a hydrologic link exists between groundwater (under the feedlot and manure storage areas) and surface waters. No discharges would be permitted from swine, veal, and poultry CAFOs, nor would

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs an overflow allowance be permitted. Routine inspection of production areas would be required, and open liquid impoundments must have depth markers. CAFOs must handle dead animals in a way that does not pollute waters (66 Fed. Reg. 2960; EPA, 2001b) Other proposed ELG regulations would govern land application of manure. CAFOs would be required to prepare and implement a Permit Nutrient Plan (PNP) and to apply manure on the basis of crop nutrient requirements. The land application rate may be calculated based on the phosphorus index, the phosphorus threshold, or on phosphorus determined by soil test. Detailed record keeping, as well as manure and soil sampling, would be required to prove compliance with the PNP. Set-back requirements would prohibit application of manure and wastewater within 100 feet of surface water (66 Fed. Reg. 2960; EPA, 2001b). In November 2001, EPA published its Notice of Data Availability (NODA) on the proposed rule (66 Fed. Reg. 58556), a detailed document outlining comments and data received and describing how the data may be used in the final CAFO regulations. EPA requested comments on a number of issues. For example, the agency asked for comments about the possible use of the environmental management system (“a continual cycle of planning, implementing, reviewing, and improving the actions an organization takes to meet its environmental obligations” (66 Fed. Reg. 58601)), as a way to give states flexibility in managing CAFO programs. For proposed ELG requirements, among other issues, EPA asked for comments about technical feasibility, costs, and benefits of zero-discharge standards for swine and poultry operations and about reasonable amounts of phosphorus banking as an acceptable nutrient management practice. For proposed NPDES requirements, EPA asked for comments on an alternative threetier structure for defining CAFOs, using 500 EPA AUs, instead of 300, to define the middle tier; size thresholds for dry-lot duck operations; options for defining horse operations as CAFOs; and other issues. The NODA includes a brief consideration of air emissions from CAFOs (66 Fed. Reg. 58592-58593). In July 2002, the EPA published a second NODA (67 Fed. Reg. 48099). That notice presented information and requested comment on alternative regulatory thresholds for chicken operations using dry litter management, the possible creation of alternative performance standards for CAFOs, and possible refinements in the EPA economic analysis model. For chicken operations, EPA is considering whether the 1000 EPA AU equivalent for broilers and laying hens should be changed to 125,000 and 82,000 birds, respectively, to reflect manure generation rates more accurately. EPA asked for comments on these alternative EPA AU equivalents. EPA is also considering, and has solicited comments on, a possible framework for alternative performance standards that would encourage voluntary development and implementation of effective technologies and management practices. The Production Area Approach would involve performance standards to govern manure and wastewater discharges; CAFOs could discharge treated pro-

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs cess wastes if treatment would result in pollution control equivalent to or better than BAT standards. Under the whole farm approach, CAFOs would use an audit process to evaluate and implement improvements on the whole farm, including land application areas, and would have a discharge allowance for the production area. The plan developed under this approach should result in improvement across “multiple environmental media,” including air emissions. The NODA solicits comments about several aspects of the proposed alternative standards. Finally, EPA explained possible changes to its model framework and assumptions and to the baseline financial data used to assess the economic effects of its final regulations on CAFOs. EPA is considering these changes as a result of comments on its earlier proposal as well as new data. COASTAL ZONE MANAGEMENT ACT The Coastal Zone Management Act of 1972 (16 USC §§ 1451-1465) is designed to protect natural systems in the U.S. coastal zone in the face of competing demands that threaten ecological and other values. The act authorizes federal grants to coastal states that protect coastal land and water by developing and implementing management programs consistent with the CZMA, which defines the “coastal zone” to include coastal waters and adjacent shorelands. This zone extends inland “only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters” (16 USC § 1453). States may include entire watersheds where land uses have a “direct and significant” impact on coastal waters (15 CFR part 923.31). States enjoy discretion in delineating the borders of their coastal zones (Malone, 2001, § 2.5). Because livestock facilities exist in close proximity to coastal waters (e.g., in North Carolina), state CZMA programs have implications for AFOs, particularly after 1990 amendments to the law. The Coastal Zone Act Reauthorization Amendments (CZARA) added a new section to the CZMA (16 USC § 1455b). Acknowledging the importance of nonpoint source pollution in degrading coastal waters, the new section requires states with federally approved coastal zone management programs to develop and implement management measures for nonpoint source pollution. The new section required EPA to provide guidance for specifying management measures for sources of nonpoint pollution in coastal waters. EPA addressed agricultural runoff in its Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters (EPA, 1993b). In this document, EPA specified management measures for “confined animal facilities” that affect coastal waters. Guidelines define large and small confined animal facilities, using thresholds lower than CAFO regulations. A large beef facility, for example, has 300 head (EPA animal units) or more; a small facility has 50-299 head (EPA animal units). Operations that are CAFOs under the Clean Water Act and therefore have NPDES permits are not subject to CZARA management measures (66 Fed. Reg. 2960, at

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs 2968; EPA, 1993b). The CZARA guidance for confined animal facilities prescribes waste discharge limits and standards for waste storage structures. The guidance also includes nutrient management measures (including a nutrient management plan) and recommendations for grazing animals. THE ROLE OF USDA Like EPA, USDA is responsible for implementing federal statutory programs, especially programs authorized in federal agricultural legislation (the so-called Farm Bills). The USDA, founded in 1862 and last reorganized in 1994, is authorized to manage a diverse range of programs. Including food programs (e.g., food stamps, school lunch), management of national forests, rural development, safety of meat and poultry products, agricultural trade, and conservation of natural resources. Several USDA agencies have conservation responsibilities that may involve livestock and their environmental effects. For example, the Natural Resources Conservation Service (NRCS) plays an important role in implementing conservation programs; the Farm Service Agency (FSA) also implements conservation programs. State and county field offices play a role in implementing USDA programs at the local level. The Agricultural Research Service (ARS) and the Cooperative State Research, Education, and Extension Service (CSREES) have research and educational responsibilities. Some of the responsibilities of these agencies are discussed below. USDA cooperates with EPA when issues concern both agriculture and environment. For example, USDA (NRCS) and EPA have collaborated on the Unified National Strategy for Animal Feeding Operations (USDA and EPA, 1999; discussed above) and other matters related to the measures governing CAFOs and the rules for TMDLs. Some USDA Operating Programs NRCS NRCS was established in 1994, as part of the USDA reorganization, to carry out certain USDA functions related to natural resources and the environment. Through technical personnel assigned to field offices, NRCS provides technical assistance and information, as well as financial assistance, to landowners, agricultural producers, and others. It helps individuals to implement conservation systems and practices (sometimes with cost-share funding), often in cooperation with local conservation districts; millions of acres are protected annually through NRCS efforts. NRCS also helps government units and community groups to protect the environment through resource planning, including farmland and watershed protection. The agency conducts inventories and assessments of U.S. natural resources (e.g., soil surveys) and makes this information available to the public.

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs NRCS also develops and maintains technical, science-based standards for conservation. NRCS assists other USDA agencies; for example, it provides technical assistance for FSA implementation of the Conservation Reserve Program and the conservation compliance requirements of other farm programs (NRCS, 2002c). NRCS manages voluntary conservation programs authorized by federal Farm Bills beginning in 1985. These include the Environmental Quality Incentives Program (discussed in detail below), Conservation of Private Grazing Land Program, the Conservation Security Program (to be operative in fiscal yar 2003), Farmland Protection Program, Wetlands Reserve Program, Wildlife Habitat Incentives Programs, and others. Funding for several of these programs comes from the Commodity Credit Corporation (CCC). NRCS personnel work with owners and operators of AFOs, with the objective of helping them to develop and implement Comprehensive Nutrient Management Plans (NRCS, 2002a). In 2001, for example, NRCS helped producers to apply nutrient management systems on 5.4 million acres and “[p]lanned or applied 10,500 waste management systems, including waste storage structures, treatment lagoons, composting facilities, and roof runoff management” (NRCS, 2001). NRCS has prepared a Draft Comprehensive Nutrient Management Planning Technical Guidance, as part of its National Planning Procedures Handbook (NRCS, 2002d). The Guidance is intended for those who develop, or assist others to develop, CNMPs. FSA The Farm Service Agency, also established in 1994 has been given primary responsibility for several important USDA programs. These include farm commodity programs; disaster assistance; farm ownership, operating, and emergency loans; and food aid programs. In addition, FSA manages several USDA resource conservation programs. FSA, like NRCS, operates through its field offices, which include state offices and 2500 USDA service centers (FSA, 2002). FSA has primary responsibility, with NRCS assistance, for the Conservation Reserve Program (CRP). The CRP is a voluntary program under which eligible land (e.g., highly erodible cropland, marginal pasture land) is enrolled by contract. In exchange for an agreement to take the land out of production and employ approved conservation practices for a 10-15 year period, owners and operators receive annual rental payments and cost-share assistance to establish approved conservation practices on the land. Farm legislation enacted in 2002 increased the maximum CRP enrollment from 36.4 million to 39.2 million acres (P.L. 107-171, § 2101, codified at 16 USC § 3831). FSA also implements the Conservation Reserve Enhancement Program, a federal-state partnership, and the Emergency Conservation Program, which provides cost-share payments to producers for the rehabilitation of farmland damaged by natural disasters.

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs The 2002 Farm Bill and Livestock Producers The Farm Security and Rural Investment Act of 2002 (the 2002 Farm Bill) (P.L. 107-171) includes a Conservation Title, which makes financial and other assistance available to livestock producers, as well as other farmers. The Conservation Title reauthorized and amended a number of conservation programs enacted in prior agricultural legislation. Particularly relevant is the Environmental Quality Incentives Program (EQIP), part of a program now called the Comprehensive Conservation Enhancement Program (under prior law, the Environmental Conservation Acreage Reserve Program). EQIP was created in 1996, in part to help livestock and other producers comply with federal and state environmental regulations. Under the 2002 Farm Bill, EQIP was reauthorized through 2007, and authorized funding was increased significantly (to $1.3 billion in fiscal year 2007). USDA’s Natural Resources Conservation Service administers EQIP, with funding from the Commodity Credit Corporation (67 Fed. Reg. 48431). EQIP is intended “to promote agricultural production and environmental quality as compatible goals, and to optimize environmental benefits.” Among other purposes, the program helps producers to comply with regulatory requirements concerning soil, water and air quality, wildlife habitat, and surface and groundwater conservation. The focus on air quality was added in 2002; prior law referred to “soil, water, and related natural resources,” with no specific mention of air quality (16 USC § 3839aa, before amendment by P.L. 107-171). In a July 2002 notice, the CCC announced its intention to issue a proposed rule for fiscal years 2003 through 2007. Among the issues to be considered in the proposed rule is “integration of air quality as a program goal” (67 Fed. Reg. 48431). The notice listed changes that the 2002 Farm Bill required for fiscal year 2002 administration of EQIP. EQIP can help producers “to make beneficial, cost effective changes to … nutrient management associated with livestock.” The program is also intended to assist producers in meeting environmental quality criteria, to provide assistance to install and maintain conservation practices and to help streamline conservation planning and regulatory compliance (Farm Bill § 2301, codified at 16 USC § 3839aa). To carry out these purposes, EQIP authorizes contracts, lasting from 1 to 10 years, with producers who agree to implement eligible environmental and conservation practices in exchange for cost-share and incentive payments, as well as technical assistance. “Practice” is defined to include structural practices, land management practices, and comprehensive nutrient management planning practices (16 USC § 3839aa-1(5)). A livestock producer who develops a CNMP is eligible for incentive payments. In determining the amount and rate of incentive payments, “great significance” can be given to a practice that promotes “residue, nutrient, pest, invasive species, or air quality management” (16 USC § 3839aa-2(a), (e), italics added). Payments to an individual or entity are limited to $450,000 for all contracts entered during fiscal years 2002 through 2007. Beginning in fiscal year 2003, however, EQIP payments may not be made to an individual or

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs entity whose average adjusted gross income for the previous three years exceeds $2.5 million, unless 75 percent of that income came from farming, ranching, or forestry (NRCS, 2002b). The 2002 Farm Bill makes more EQIP money available to livestock producers. Under prior law, livestock producers were to receive at least 50 percent of EQIP funding, but the 2002 Farm Bill targets 60 percent of program funding for environmental practices relating to livestock production (§ 3839aa-2(g)). Amendments to the program eliminate the preference that participants be located in a specially designated conservation priority area and extend eligibility to livestock producers throughout the United States. Moreover, an animal unit cap no longer limits eligibility for cost-share payments for constructing animal waste management facilities. Applications from producers who operate confined livestock feeding operations must provide for development and implementation of a comprehensive nutrient management plan (§ 3839aa-5(a)(3)). In contrast to EQIP, federal money is not available for animal waste facilities under the Conservation Security Program (CSP), enacted in the 2002 Farm Bill. The CSP pays producers for adopting or maintaining conservation practices that help to protect or improve the quality of soil, water, air, energy, and plant and animal life and other conservation purposes. The CSP includes three tiers of conservation contracts, with increasingly stringent requirements. Eligible producers enter conservation contracts that set out the required conservation practices; a variety of practices are eligible. In exchange, producers receive payment and a share (normally 75 percent; 90 percent for a beginning farmer) of the cost of adopting or maintaining the required conservation practices. Livestock farmers are not excluded from the CSP, but the statute specifies that payment may not be made for “construction or maintenance of animal waste storage or treatment facilities or associated waste transport or transfer devices for animal feeding operations” (Farm Bill § 2001, codified at 16 USC § 3838c(b)(3)(A)). Regulations for the CSP have not been enacted, and the program will not be effective until some time during 2003. USDA Research and Extension ARS The Agricultural Research Service, established in 1953, is the in-house research agency of USDA. Its responsibilities are articulated by statute. In brief, federally supported agricultural research, extension, and education are intended to enhance the competitiveness of the U.S. agriculture and food industry; increase long-term productivity, while protecting the natural resource base; develop new uses and products for agricultural commodities; promote economic opportunity in rural communities and meet U.S. information and technology transfer needs; improve risk management; improve safe production and processing of food and fiber resources, using methods that balance yield and environmental soundness;

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs support higher education in agriculture; and maintain the food supply (7 USC § 3101). ARS research, carried out by field scientists located throughout the United States, involves more than 1200 projects organized into 22 national programs. Among those related to livestock production are the national programs directed to air quality and manure and by-product utilization. Research components of the air quality program focus on particulates, agriculturally emitted ammonia, and malodorous compounds from animal production operations, as well as ozone impacts and volatilized pesticides and other synthetic organic compounds. Among the projected outcomes related to livestock facilities are “[i]mproved understanding of the physics of dust emissions … with state-of-knowledge control measures,” a “database of ammonia emission factors for animal production facilities, manure storage areas, and manure and fertilizer field application sites,” and improved understanding of the formation, interaction, and transport of odorous compounds (ARS, 2002). The ARS National Program on manure and by-product utilization focuses on nutrient management (protection of soil, water, and air from excess nutrients), atmospheric emissions, and pathogens. Projected outcomes include more efficient conversion of feed, identification of alternative uses of manure, development of “management practices, treatment technologies and decision tools” to improve CNMPs and help meet TMDLs, and practices and technologies to control pathogens (ARS, 2002). CSREES The Cooperative State Research, Education, and Extension Service carries out USDA functions related to cooperative state research programs and cooperative extension and education programs (7 USC § 6971). The mission of CSREES is to advance “creative and integrated research, education, and extension programs in the food, agriculture and related sciences” (CSREES, 2002). Among its primary functions are leadership for programs that support university-based and other institutional research, education, and extension, and administration of federal assistance for these programs. To accomplish its mission, CSREES works with the land-grant universities, other colleges, universities, and research and educational organizations to develop programs for agricultural research, extension, and higher education. Land-grant universities and other partners carry out the programs (CSREES, 2002). Land-grant universities and certain other educational institutions receive funds, allocated to states by formula, to carry out research and outreach programs in food and agricultural sciences. CSREES, like ARS, has projects related to livestock production. For example, an animal waste management program, with nationwide collaboration, is intended to decrease environmental impairment and achieve other environmental benefits by educating producers, increasing the use of best management practices, providing training for CAFOs, and other activities (CSREES, 2001).

OCR for page 129
Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs SUMMARY Many different federal environmental statutes and their associated regulations may affect AFOs. Air pollutants are regulated primarily by the Clean Air Act, which includes measures to govern criteria pollutants and hazardous air pollutants. States play an important role in implementing CAA provisions and issuing permits for facilities under their state implementation plans. Some air emissions are also regulated by CERCLA and EPCRA. Water pollution is governed by the Clean Water Act and, in some areas, the Coastal Zone Management Act. The EPA plays a major role in implementing these statutes, with significant cooperation from the states. In addition to these regulatory programs, statutory programs implemented by the USDA offer technical assistance and financial incentives to livestock producers.