The final word is in — air-emission requirements do apply to pork production units.

The question as to whether the Clean Air Act, CERCLA and EPCRA requirements applied to animal-feeding operations had been limbo. What changed the scene was a variety of enforcement actions and court rulings.

Among those actions was a federal court ruling against Tyson Foods and its contract producers brought by a citizens’ lawsuit. Enforcement actions by states and the Environmental Protection Agency against Premium Standard Farms and other producers played a roll as well. Meanwhile, some state laws also changed.

In light of these things, the question is not if, but how air-emission laws will be applied to pork production operations.

The problem is that there have been no uniform studies or calibrations to determine what size operations or what manure-handling methods produce air emissions that exceed legal thresholds of regulated pollutants — ammonia, hydrogen sulfide, particulate matter, nitrous oxide and volatile organic compounds.

Fortunately for you, the National Pork Producers Council and other livestock and poultry entities, have negotiated an option with EPA to find the necessary answers before imposing the regulations. The Air Emissions Consent Agreement needs to become part of your working vocabulary.

Under the agreement, EPA will provide pork producers (and other animal-agriculture industries) with a “safe harbor” period. Producers will be protected from legal liabilities associated with air-emission issues during a designated time frame. (More on that later.)

In return, the pork industry (and other animal-ag industries) will pay for and conduct a two-year research study to gather air-emissions data specific to the industry’s production and manure-management systems. For the nationwide pork study, representative operations will be selected to provide air-emissions data on various production phases, climatic conditions, seasons of the year, manure-management systems and operation sizes.

The National Pork Board has allocated $4.5 million in checkoff dollars this year to the research project. The industry’s total financial commitment for the 2-year, pork-specific study is estimated at $7 million.

“The point is to develop scientific air-quality standards,” says Carrie Tengman, NPB’s environmental services director. “The study will look at emissions from barns, manure-storage systems and lagoons.” Air emissions from land application of manure will not be included in the study.

Mobile laboratories will actually be parked at the selected pork operations to take the appropriate measurements of air emitted from the buildings. “There will be producer training for study participants,” notes Tengman.

EPA will oversee the research. The pork study will involve a team of university scientists, with Purdue University providing technical oversight, financial accounting and data review. Al Heber, a Purdue agricultural engineer, will serve as research leader. EPA will interpret the data, as well as findings from other studies, to determine what are the bench-line emissions, says John Thorne, president of C&M Capitolink, NPPC’s environmental lobbying firm.

A non-profit organization, called the Agricultural Air Research Council, will be formed to collect and distribute the money, hold title to the research equipment and interact with Heber. AARC will meet with EPA regularly, and NPPC and NPB representatives will serve on its board of directors.

The end goal of the research and negotiated agreement with EPA, is to develop regulatory guidance for interpreting air laws, or what’s called “look-up” charts. A producer will be able to find his/her operation size and manure-management methods within EPA’s look-up charts to determine what is needed to comply with the air-emissions laws. If the operation falls below the look-up charts’ threshold, the producer will simply certify with EPA that the operation is not bound by the air laws. If the operation exceeds the threshold, it will need to come into compliance.

The compliance period — also known as a “cure period” — will be 120 days or so. “Producers will need to do whatever is required to comply,” says Thorne. Exactly what that entails will vary by operation, location and state air conditions. It could be as simple as filing CERCLA or EPCRA pollutant release forms or applying for a permit under the Clean Air Act. Permits could require some on-farm renovation or technology implementation, such as changing manure storage or installing misters inside facilities to reduce dust levels.

“If you come into compliance, you will be protected from future lawsuits,” notes Richard Schwartz, an attorney with Crowell Moring, in Washington, D.C. “For producers, you will have a level playing field. You will have scientific standards, and you can view it as a very cheap insurance policy.”

The safe-harbor provision  provided, recognizes the industry’s part in paying for and conducting the air-emissions research. What the safe-harbor provision really means is that any producer (running any size operation) who participates in the study will be released from liability for any past air-emission challenges. This includes any potential state or citizen lawsuits. The safe-harbor period will run from about 2007 backward — the statute of limitations for such cases is five years.

“Most producers aren’t aware of their vulnerability,” notes Schwartz. “Air laws allow groups to sue for emission violations that occurred in the past. Even producers who no longer own farms may want to sign up.”

Although there is no limit to the number of operations that can sign up, it’s unlikely you will end up with a mobile lab parked on site. That will occur on a handful of representatives units. But regardless of your participation status, you will still get the legal protection that signing up provides.   

You will have to sign a formal compliance agreement and pay a fee. “The compliance agreement is not an admission of guilt or wrong doing,” notes Schwartz.

The fees fall out like this:

  • $200 per single farm that’s smaller than the definition of a Confined Animal Feeding Operation.
  • $500 per single farm that’s larger than the CAFO definition.
  • $1,000 per single farm that is 10 times larger than the CAFO definition.
  • The fee caps off at 200 farms for $100,000 (one owner.)

As for production-contract arrangements, exactly who needs to sign up? “An integrator can pay for all of his farms, but it would protect only him, not the contract grower,” says Schwartz. “To be protected, the contract grower would have to sign up and pay the fee as well.”

Another point worth clarifying, involves who’s protected following the cure period? “Both the integrator and contract grower have to comply with the findings of the look-up charts in order to receive future protection,” ads Schwartz. “If, for example, a contract grower failed to comply, the integrator also would be out of compliance on that site — and would lose permanent protection.”

Participation in the study is voluntary. As of this writing, exactly when the sign-up period will start was unclear, but it’s likely to begin in May and run through the end of summer. You can get more specific information from your state pork association and NPPC. Check and for periodic updates.

It cannot be emphasized enough that if you don’t sign up for the study while the window is open, the resulting liability protection will not be offered again.

Equally important is understanding that simply signing up “is not a free pass for the future,” adds Schwartz. “You will need to comply with whatever the look-up charts determine.”

What about state laws; what role will they play? “The technical answer is, states can do anything they want,” says Schwartz. “EPA will develop regulations that most states will accept. But some states will still likely do their own thing, to a point.”

California is already an exception. The state had exempted farms from the Clean Air Act, but it was sued and the courts ruled that the exemption was unlawful. Now, producers there have to obtain air permits on an accelerated timeline. However, they may still sign up for the study and receive legal protection from past emissions.

Not everyone approves of the process underway. The specific rub is that EPA negotiated with animal-agriculture industries to conduct the air-emission research, as well as allowing liability protection for those who participate. Schwartz anticipates that the Sierra Club or other groups will likely sue the EPA over this plan.

Everyone knows that environmental challenges can get pretty stormy, time consuming and costly, regardless of their validity. Don’t let this chance to provide a safe harbor for your operation, and find science-based answers for the industry, slip through your fingers. Plan now to sign up.