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Navigating a course through coarse particulate matter regulations

Legal issues affecting the feed and grain industry are discussed in Feed and Grains legal Q&A.

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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.

In recent years, CAFOs have come under fire from the EPA, resulting in the institution of requirements for wastewater and manure controls relative to water quality issues. It is reasonable to expect similar scrutiny exercised by the agency for air quality issues.

F&G: Has anyone challenged the EPA’s omission of the ag exemption language in the rule changes?

Triplett: The American Farm Bureau and other interested groups unsuccessfully challenged EPA’s decision on this point. With the legal challenge is over, it would take legislative action to exempt these sources.

From an operator’s standpoint — whether you are involved in a CAFO operation or other agricultural based facility (such as a grain handling, processing, feed manufacturing facility, etc.) — what is most troubling about the EPA’s action is their reversal of the proposed exemption without providing any conclusive evidence that coarse PM from agricultural operations poses a health risk. This creates the potential for coarse PM controls that may have no public health benefit.

F&G: Much of the discussion has centered on CAFOs, but as you mentioned earlier, other operations are at risk. How so?

Triplett: It is hard to say exactly which, if any, agricultural sources would be targeted for PM controls. Point sources, such as grain elevators and feed mills, are always potential targets as they are easier to inspect and control. Furthermore, we know that EPA is looking at air emissions from CAFOs since they are larger, concentrated facilities (as opposed to traditional farms). However, it is not uncommon for agencies to require smaller facilities in an industry sector to create control plans, as opposed to installing control equipment. For example, farm vehicles can kick up dust when they travel on dirt roads. Another example is feed storage and handling that has the potential to generate dust. To address these examples, an agency could theoretically require agricultural operations of a certain size to have a dust control plan that could include measures such as restricting speed limits and requiring the mixture of oil with feed to reduce dust. Since it is difficult to say whether the EPA or a state will require new controls or measures on agricultural sources to meet the coarse PM NAAQS, it is almost impossible to say which agricultural sources could be targeted.

F&G: Are there any other air quality issues at the EPA we should be aware of?

Triplett: As you know, greenhouse gas regulation is on the horizon. Congress required the EPA, through a general appropriations bill, to create a Greenhouse Gas Reporting Rule last year. After missing its initial deadline, the EPA got around to submitting a proposed rule in April. The proposed rule would require suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of greenhouse gas emissions to submit annual reports to the EPA. The gases covered by the proposed rule are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), sulfur hexafluoride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE).

The rule affects animal feeding operations that have a “manure management system” that releases more than 25 metric tons of CO2 equivalents annually. These sources would be required to report under the rule. This rule, as proposed, would mostly affect large operations using anaerobic lagoons. Large-scale hog operations, large-scale feedlots and dairy operations could be affected. The proposed rules did not include requirements for reporting “methane from ruminant animals via enteric fermentation.” This means the “cow tax” did not make it into the proposed rules and likely will not be adopted.

The rule information sheets state that other sources of agricultural greenhouse gas release are not to be regulated under this reporting rule. Examples of activities not affected by reporting requirements include in-field burning of agricultural residues, composting (not manure), and cultivation of crops.

At this point, EPA is working on developing the final rule and responding to comments. That process can take months to over a year.

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