When the Environmental Protection Agency (EPA) dropped its proposal to exempt agricultural sources from requirements to implement control systems to meet the National Ambient Air Quality Standard (NAAQS) for coarse particulate matter (PM), these sources remain exposed to further EPA regulation under the auspices of the Clean Air Act.
In this issue’s Legal Q&A, Feed & Grain visits with Eric Triplett of Faegre & Benson LLP to help lend some clarity to the potential impact the EPA’s action could have for CAFOs and other agricultural facilities.
F&G: Eric, please bring our readers up to speed on the events which led us to the current situation?
Triplett: To best understand what has transpired, it makes sense to revisit the proposed rule regarding PM. In the January 2006 proposed PM rule, the EPA planned to create a new category of PM, called PM10-2.5, that would truly regulate only the coarse-size particle fraction (i.e., PM with a diameter less than or equal to 10 microns and greater than 2.5 microns). As a reference point, a human hair is about 70 microns in diameter.
Since the current PM10 standard includes all PM with a diameter less than or equal to 10 microns (including coarse and fine-size PM) and there is a PM2.5 NAAQS, the EPA felt that it was necessary to separate out the true coarse-size particle fraction from the PM10 NAAQS. The EPA also proposed to exempt PM generated by “agricultural sources, mining sources, and other similar sources of crustal material” from any controls necessary for an area to meet the PM10-2.5 NAAQS. Had the EPA finalized this rule, agricultural sources would have been exempt from control under the coarse PM standard for the first time.
F&G: So what happened after the final rule was submitted?
Triplett: The EPA dropped its proposal for a PM10-2.5 standard in the October 2006 final rule as well as its proposed exemption for controls on agricultural sources. The American Farm Bureau and other groups challenged the EPA’s decision to maintain the 24-hour PM10 NAAQS without exemption for rural sources based on their belief the EPA did not demonstrate rural PM is a health hazard.
These groups also argued the EPA should have promulgated separate PM10 NAAQS for urban and rural areas; that the 150 µg/m3 standard is overly protective; and the EPA should not have dropped its proposed PM10-2.5 standard. The U.S. Court of Appeals for the District of Columbia Circuit rejected these arguments.
F&G: Did the ruling have an immediate effect on PM regulations?
Triplett: This ruling will likely have no immediate impact on CAFOs and other agricultural sources since the 24-hour PM10 NAAQS has not changed. This conclusion was shared by former EPA Administrator Steven Johnson after issuance of the final rule when he told Iowa congressmen that “there are no changes and no new regulations on farmers.”
However, the EPA is currently evaluating air emissions from CAFOs and could create regulations to require PM controls for CAFOs in the near future. The PM ruling that we have been talking about continues to allow the EPA and states to promulgate regulations to address coarse PM emissions from CAFOs and other sources of coarse PM.
F&G: We also understand there is a study currently underway, the findings of which could change the regulatory landscape for CAFOs and other facilities?
Triplett: That is correct. There is a two-year, $14.6 million study nearing completion originated as a result of a 2002 National Academy of Sciences report which identified a need for improvement in estimating CAFO emissions. The study is measuring emissions of hydrogen sulfide, PM, ammonia, nitrous oxide, volatile organic compounds, and other gases from poultry, dairy and swine facilities at 24 sites in nine states.
This study is important because the EPA will use it to determine not only if CAFOs are in compliance with the Clean Air Act, but more importantly, how to address these emissions.