EPA Extends "Air
Consent" Sign Up Deadline to August 12
Should I Sign?
Dairy Producers and the EPA Air Quality Consent Agreement
The following article is provided for your information only. We recognize this is an important decision, but the article is not intended and should not be construed as legal or any other type of advice. It is a summary of some of the complex and technical legal issues presented by the Voluntary Consent Agreement in the context of potentially conflicting interests among regulatory agencies at the local, state and federal level. Each dairy's situation is different, and the information below cannot address every situation. We urge you to consult an attorney to help you to decide what decision is right for your dairy. That decision requires a careful review of the Air Quality Compliance Agreement itself and the relevant laws and regulations that may apply to your dairy operations.
Many California dairy producers have by now heard of the Air Consent Agreement proposed by the U.S. Environmental Protection Agency (EPA). The current deadline for signing up for this agreement is July 29, 2005. The following questions and answers are intended to provide basic information about the consent agreement.
Q: Should I sign the agreement?
A: This is a question that cannot be answered by anyone else but you. The consent agreement contains benefits for dairies and some potential risks. Whether a dairy should or shouldn’t sign the agreement depends on a number of factors including:
Q: What are the benefits of signing the agreement?
A: The Air Consent Agreement is between individual dairies and the U.S. EPA. A dairy producer who voluntarily signs it agrees that he is subject to federal air quality laws, pays a modest penalty, but in doing so is not admitting to having violated any of those laws. In return, the EPA agrees not take legal action against the dairy for any past violations and will not enforce those laws until air emission studies are completed and the data is reviewed and approved by EPA. This could take up to 3-1/2 years. This benefit is significant since violations of these federal laws could result in penalties of up to $27,500 per day.
Q: How much is the penalty and why is it called a penalty and not a fee?
A: The dairies that choose to participate pay a small civil penalty -- $200 for a dairy with fewer than 700 cows, $500 for a dairy with 700 to 6,999 cows, and $1,000 for a dairy with 7,000 or more cows. It is called a penalty for legal reasons involving EPA not taking action for possible past or current violations.
The dairy producer signing also is agreeing to contribute up to $2,500 to fund a two year dairy air emission study. However, the industry is in the process of securing another funding source for this study.
Q: Why the study?
A: EPA doesn’t have the information necessary to determine which dairies are and are not subject to air quality laws. After the dairy studies are completed, in about two years, a computer model will be developed that will allow dairies to determine which laws and regulations apply to them. By signing the agreement, dairy producers are agreeing to comply with the regulations when the studies are complete. However, those regulations will apply to all dairies, whether or not they sign the agreement. If no dairy study occurs because of lack of participation, there is a possibility that information gained during research of other livestock (poultry or pork) may be used as a surrogate.
Q: What if I don’t sign?
A: Then the benefits previously stated will not apply to you and you may be exposed to either enforcement of federal air quality laws by government agencies or citizen’s lawsuits for failing to comply with those laws. These types of lawsuits have not yet occurred in California but have been filed in other states.
Q: Does signing the agreement protect me from all actions regarding air regulations?
A: No. Signing the consent agreement provides some protection from potential citizens’ lawsuits and action by the federal government, but it does not excuse producers from meeting all state and local laws. We repeat; those who sign the agreement will still have to comply with all rules and regulations as enforced by their local air districts and counties.
Q: So, should I sign the agreement?
A: If your dairy is under 400 cows and your relationship with neighbors is good, you probably face very little risk if you decide not to sign.
However, larger dairies face greater risks of enforcement and lawsuits. Exactly how large is uncertain, as federal permitting thresholds are vague because of lack of data about actual emissions from dairies. However it is clear that as a dairy grows larger than 400 cows, it is – based on the limited information currently available – more likely to exceed certain federal air quality thresholds and as such, may be at risk for enforcement or citizens suits.
Your dairy may also be at increased risk if you are undergoing any type of public review process for conditional use permits, etc. This is especially true in areas where neighbors may be opposed to new projects or expansions. These types of dairies probably have the most to gain from signing the agreement.
For more detailed information you can go to the following sources:
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8/03/05: Dairy
emissions recommendation seriously flawed Western
United Dairymen
6/22/05: EPA Grants
Request To Delay Sign-Up Deadline For Air Quality Consent Agreement
EPA .pdf documents page
EPA'S NEW CAFO REGULATIONS NEEDS SOME CLARIFICATION
(April 1, 2005) Farmers and state officials are looking for
clarification on the Environmental Protection Agency’s new concentrated animal
feeding operation (CAFO) regulations. Northeast DairyBusiness magazine
managing editor, Susan Harlow, talked about it in Friday’s Dairy Profit
Weekly report.
Harlow reported that states are wondering how their CAFO programs will be affected by last month’s federal court ruling on the EPA’s regulations. She said it will likely be months before they know, "So what do they do in the mean time?"
All but five states have the authority to implement their own water quality programs to comply with the Clean Water Act, which they’re allowed to do, she said, as long as the laws are at least as strict as the federal act.
Danielle Quist, American Farm Bureau attorney, says those states will have to change their laws to comply with the new ruling. Many are in the middle of developing or revising their laws, according to Harlow, so that will allow them to make any necessary adjustments before they finalize state regulations. But a lot of producers have their CAFO permit processes underway as well, she said.
Quist says the states will have to wait until the EPA does what the court has ordered, namely clarify some of the law. The ruling struck down several major provisions including one that large CAFOs don’t automatically require clean water permits and that the EPA rule should require stricter enforcement of nutrient management plans. The court also said the rule is "ambiguous" about whether states can promulgate their own water-quality based effluent limits or how standards on how a discharge can affect water quality.
The EPA will give states guidance on these issues but it also warned that the deadlines it set for meeting Clean Water Act provisions are still in place.
All CAFOs are supposed to have their nutrient management plans implemented by the end of 2006, Harlow said, but as a practical matter, the EPA is going to have to allow the states some leeway, according to Quist.
Quist has been getting lots of calls, Harlow reported, and is telling producers, "If you think you’re going to have a discharge from your livestock operation, get the permit process started now. You just don’t want to leave yourself unprotected."
NEW EPA EMISSION MONITORING MAY RAISE A STINK ON U.S. DAIRY
FARMS
(February 4, 2005) The Environmental
Protection Agency is going to begin monitoring air emissions from animal feeding
operations, including dairies. In a follow up program, Dairy Profit Weekly's
Dave Natzke reported that the clock officially began ticking on the program with
the January 31 publication in the Federal Register.
Farm operators have until March 2 to comment on the plan, and until May 2 to sign up for it, Natzke said, and “Producers with 200 or more cows may want to take a serious look, and get legal advice.” Many of the documents related to the program are posted below.
Natzke also offered some news that may help
the producer’s cause.
Using specially controlled chambers to capture gases, Mitloehner's research found that dairy cows produce about half the amount of pollutants than previously believed. The research also found that much of the pollutants came from the cows themselves and not from manure.
“Producers have been spending a lot of money on engineering projects to cap and aerate manure lagoons,” Natzke said, “And this latest research may help them manage air pollutants through less costly biological means, such as changes to nutrition and feeding.”
GET OUT YOUR CHECKBOOKS...
IT'S GOING TO COST MORE TO PRODUCE MILK
(January 28, 2005) The Environmental Protection Agency has
announced terms of a compliance agreement to allows large animal feeding
operations (AFOs) to be monitored for air emissions, in exchange for being
exempted from further government penalties that may result from pollution
violations.
Dairy Profit Weekly editor, Dave Natzke, reported in his Friday DairyLine broadcast that the EPA has had the authority to regulate air emissions from AFOs, including dairies, since the 1990 U.S. Clean Air Act. The problem, according to Natzke, has been that it’s much harder to measure air emissions for things like ammonia, volatile organic compounds, and hydrogen sulfide from a large feedlot or dairy compared to, say a factory smokestack.
The EPA, the week of January 17, announced a plan to address the enforcement and research aspects of air emissions from AFOs, and Natzke warned that the plan should be of "major concern" to many dairy producers. He said "The clock could start ticking on this plan as early as February 1, so this spring could be a critical period, legally and financially, for any dairy producers with 200 cows or more. Those producers have 90 days to sign a voluntary Air Quality Compliance Agreement with EPA and pay a fee, based on herd size, Natzke reported.
The fee is $200 for operations of fewer than 700 cows or 1,000 heifers; $500 for operations of 700-7,000 cows or 1,000-10,000 heifers; and $1,000 for operations of more than 7,000 cows or 10,000 heifers. Although uncommon in dairy, the payments are multiplied if a business owns more than one farm. For example, penalty payments for businesses with multiple AFOs are capped at $10,000 for 1-10 farms; $30,000 for 11-50 farms; up to $100,000 for 151-200 farms.
As an incentive, signing an Air Quality Compliance Agreement and paying the fee provides the dairy producer protection against some past and current Federal fines and lawsuits if the dairies are later found to be in violation of air emission standards.
A second aspect is creation of a two-year air emission monitoring program
at selected dairies throughout the U.S. in an effort to establish more accurate
air emission thresholds for AFOs. Given the EPA timeline, Natzke warned that
this is one topic that dairy producers can’t put off and they may want to get
legal advice before signing the agreement.
EPA .pdf documents page
2/18/05- NEDPA Board of Directors Resolution
EPA: Animal Feeding Operations Consent Agreement and Final Order
EPA Announces Air Quality Compliance Agreement For Animal Feeding Operations
Animal Feeding Operations - Air Quality Compliance Agreement Fact Sheet
Animal Feeding Operations Consent Agreement and Final Order
National Air Emissions Monitoring Study Protocol Overview & Summary
EPA Consent Agreement and Final Order
2/09/05: NEDPA Board releases recommendation on EPA agreement
2/18/05- The Northeast Dairy Producers Association recommends that dairy producers nationwide sign the EPA’s new Air Quality Compliance Agreement. Producers have until May 2 to do so, according to Natzke.
The agreement includes a financial penalty based on herd size but the money will be used to finance research that could be used to set Federal air emission regulations. The Northeast group is worried however that, if not enough producers sign the agreement, the EPA could regulate dairy air emissions based on poultry or swine standards, or use outdated dairy standards.
The organization has commissioned a team of Cornell University dairy
experts to compose comments on the plan. The public comment period ends March 2.
National Milk has also established a task force to examine air emission issues
and the EPA plan.
NEW
EPA EMISSION MONITORING MAY RAISE A STINK ON U.S. DAIRY FARMS
(February 4, 2005) Last Week, Dairy Profit Weekly editor, Dave Natzke, warned that the Environmental Protection Agency was going to begin monitoring air emissions from animal feeding operations, including dairies. In a follow up program Friday, Natzke reported that the clock officially began ticking on the program with the January 31 publication in the Federal Register.
Farm operators have until March 2 to comment on the plan, and until May 2 to sign up for it, Natzke said, and “Producers with 200 or more cows may want to take a serious look, and get legal advice.” Many of the documents related to the program are posted above.
Natzke also offered some news that may
help the producer’s cause.
Using specially controlled chambers to capture gases, Mitloehner's research found that dairy cows produce about half the amount of pollutants than previously believed. The research also found that much of the pollutants came from the cows themselves and not from manure.
“Producers have been spending a lot of money on engineering projects to cap and aerate manure lagoons,” Natzke said, “And this latest research may help them manage air pollutants through less costly biological means, such as changes to nutrition and feeding.”
GET OUT YOUR CHECKBOOKS...
IT'S GOING TO COST MORE TO PRODUCE MILK
(January 28, 2005) The Environmental Protection Agency has
announced terms of a compliance agreement to allows large animal feeding
operations (AFOs) to be monitored for air emissions, in exchange for being
exempted from further government penalties that may result from pollution
violations.
Dairy Profit Weekly editor, Dave Natzke, reported in his Friday DairyLine broadcast that the EPA has had the authority to regulate air emissions from AFOs, including dairies, since the 1990 U.S. Clean Air Act. The problem, according to Natzke, has been that it’s much harder to measure air emissions for things like ammonia, volatile organic compounds, and hydrogen sulfide from a large feedlot or dairy compared to, say a factory smokestack.
The EPA, the week of January 17, announced a plan to address the enforcement and research aspects of air emissions from AFOs, and Natzke warned that the plan should be of "major concern" to many dairy producers. He said "The clock could start ticking on this plan as early as February 1, so this spring could be a critical period, legally and financially, for any dairy producers with 200 cows or more. Those producers have 90 days to sign a voluntary Air Quality Compliance Agreement with EPA and pay a fee, based on herd size, Natzke reported.
The fee is $200 for operations of fewer than 700 cows or 1,000 heifers; $500 for operations of 700-7,000 cows or 1,000-10,000 heifers; and $1,000 for operations of more than 7,000 cows or 10,000 heifers. Although uncommon in dairy, the payments are multiplied if a business owns more than one farm. For example, penalty payments for businesses with multiple AFOs are capped at $10,000 for 1-10 farms; $30,000 for 11-50 farms; up to $100,000 for 151-200 farms.
As an incentive, signing an Air Quality Compliance Agreement and paying the fee provides the dairy producer protection against some past and current Federal fines and lawsuits if the dairies are later found to be in violation of air emission standards.
A second aspect is creation of a two-year air emission monitoring program at selected dairies throughout the U.S. in an effort to establish more accurate air emission thresholds for AFOs. Given the EPA timeline, Natzke warned that this is one topic that dairy producers can’t put off and they may want to get legal advice before signing the agreement.