Farms face air testing

Wednesday, May 31, 2017
Chicken barns like these on Highway 431 near Belfast could be affected by a federal court of appeals ruling adding emissions monitoring regulations.
Photo by Jacqueline Langston

Court ruling could affect many local farm operations

A federal court of appeals issued a ruling April 11 that could immediately lay additional regulatory and financial burdens on Tennessee farmers who raise chickens and other livestock in large numbers. The court ruling, if it stands, will require farmers, starting this year, to monitor and report air emissions of certain pollutants.

One effect, too, is that the price of chicken for consumers would likely rise dramatically due to the high cost of air quality monitoring.

The large operations that will be affected are those that raise thousands of animals in tight quarters, called Concentrated Animal Feeding Operations or CAFOs, such as the ubiquitous chicken barns in rural Bedford and Marshall counties. There are currently 28 permits for CAFOs in Bedford County, five CAFOs in Marshall County and 332 statewide.

This ruling is just the latest round in a decade-old legal dispute between the EPA and environmental groups over the issue of atmospheric releases of pollutants from livestock operations.

Old rule tossed

The court’s decision threw out a rule issued by the EPA nine years ago that exempted farm operations from monitoring and reporting airborne pollution. The EPA implemented in 2008 the exemption to two laws from the 1980s.

The federal laws in dispute are the Comprehensive Environmental Response, Compensation, and Liability Act (passed in 1980) and the subsequent Emergency Planning and Community Right-to-Know Act (passed in 1986).

These laws require any entity that releases large quantities of hazardous materials into the environment to report it. Animal waste from farms does release hazardous substances that are covered under federal law — primarily ammonia and hydrogen sulfide — but because of the exemption there has been no requirement to monitor and report toxic chemical releases from farms that may exceed federal standards.

The original intent of the federal laws, according to supporters of the EPA’s longstanding livestock exemption, was to ensure an effective and timely response following a rapid release of a toxic substance. (An example, would be a train wreck in which a rail car carrying thousands of gallons of ammonia is ruptured.)

The intent of the law, they say, was not to require reporting by livestock operations, which release relatively low levels of hazardous materials on and off continuously over long periods of time. The noxious gases released by farm operations dissipate quickly and present little risk to people on neighboring properties, according to supporters of the EPA exemption.

But, the court found that Congress did not grant the EPA authority to exempt reporting requirements for some releases of hazardous substances.

Arbitrary

exemption?

The environmental groups argued, however, that the three-decades-old laws do not allow exemptions and that the EPA’s rule was “arbitrary to boot because it treats air releases from animal waste at farms differently than those from other sources (like a leaky ammonia tank) or other locations (like animal waste at zoos, circuses or slaughterhouses).”

It is established practice, however, for federal agencies to grant such exemptions to laws “when the burdens of regulation yield a gain of trivial or no value.” It was under this premise that the EPA concluded that animal waste reports were unnecessary “because in most cases, a federal response is impractical and unlikely.”

No enforcement

When the exemption was first adopted in 2008, the EPA “noted that it had never taken a response action ...on air releases from animal waste ....” and “could not foresee a situation” where it might respond to such an event in the future, according to court documents.

“They (the EPA) had pretty well settled with the ag producers that there was really no need and no redeeming value for reporting under this law,” said Shawn Hawkins, Ph.D, with University of Tennessee-Knoxville Ag Research.

But the court’s view differed. “... we find that those reports aren’t nearly as useless as the EPA makes them out to be.”

The court, however, did not consider whether the costs associated with reporting would outweigh the benefits or whether law would allow an exemption if it was determined that the costs did outweigh the benefits.

The EPA told the court that the savings to farmers in not having to monitor air quality is “substantial,” saving “more than a million man hours and $60 million in compliance costs and cuts out roughly 160,000 man hours and $8 million in government costs...” But the court found that those costs “are not enough” to support continuing with the exemption.

“The issue of the cost is huge,” Hawkins said in a May 11 phone interview with the Times-Gazette. “I’m glad they (the appeals court) at least acknowledged that.

“It’s a complex thing to measure ammonia, particularly emissions from a building,” he continued. “The equipment is very expensive and dust (prevalent in livestock barns) does not play nice with sensitive instruments.” To monitor ammonia levels, Hawkins said, would require sensors on all the exhaust fans. Chicken barns can have up to 16 fans each.

“There are ways to measure it but that’s obviously not practical for a poultry producer to do and moreover to maintain,” Hawkins said. “Producers are not technical folks and asking them to report and do these tests, it would be challenging for them to comply.”

The court’s ruling does not order or even mention possible enforcement actions. Its only effect is to require monitoring and reporting of air releases that exceed federal standards, but the reports could conceivably be used at some point to rally public pressure for enforcement.

“It’s important to understand that this has nothing to do with controlling emissions,” Hawkins said. “I suppose that implication (for enforcement actions) could be read into it but this is only a reporting requirement. It has nothing to do with the Clean Air Act.”

Hawkins expects that the current ruling will be challenged and the next rung up the legal ladder is the U.S. Supreme Court.

“For many of us this was really unexpected,” he said. “We thought the issue was settled.”

But others see the current court ruling as opening the gates for further regulations on livestock operations. “The Waterkeeper decision has additional relevance in light of increasing scrutiny of large agricultural operations by regulators and environmental groups,” wrote

Seattle attorney Emerson Hilton in an article on the American Bar Association website said, “Public access to additional data about animal feeding operations may be used to fuel other litigation, including permit challenges and citizen suits. Increased reporting of air releases by farms may also have relevance under growing initiatives to regulate greenhouse gas emissions from the agricultural sector.”

Livestock pollutes

A 2004 EPA report “Ammonia Emissions from Animal Husbandry Operations” determined that the “largest source of ammonia emissions” in the U.S. is livestock agriculture.

At the time, according to the report, there were about 1.2 million livestock and poultry farms in the U.S. and around a third of those raised animals in confinement — CAFOs. In that same report, the EPA stated that ammonia emissions to the atmosphere were of concern “because they contribute to eutrophication of surface waters and nitrate contamination of ground waters and impair air quality.”

In 2005, the EPA reached an agreement with livestock producers to conduct a two-year air emissions study. The EPA planned to develop air monitoring techniques for the different types of CAFOs within 18 months of completion of the study. The study was completed but protocols for widespread monitoring have still not been developed, 12 years later, causing environmental groups to file this latest court action on December 12, 2016.

Who’s suing whom

The groups that challenged the EPA’s exemption included the Waterkeeper Alliance, the Sierra Club, the Humane Society of the United States, the Environmental Integrity Project and the Center for Food Safety. Although not directly involved in the case, the American Lung Association and the American Thoracic Society offered support statements to the plaintiffs.

Providing support to the defendants (the EPA) were the U.S. Poultry and Egg Association and the National Pork Producers Council.