March 2005 Page 9

     On Monday, Jan. 31 the Environmental Protection Agency (EPA) published its notice of consent agreement and final order for animal feeding operations (AFO) pertaining to an Air Compliance Agreement. The purpose of this consent agreement according to EPA is to "spur the development of air emission data for animal agriculture production while providing legal protection to participating farms from enforcement action under the Clean Air Act, the Superfund Law and the Emergency and Community Right to Know Act ". This consent agreement is the result of years of dialog between some agriculture groups and EPA pertaining to enforcement actions of the Clean Air Act upon specific swine production facilities and "wet manure" egg production facilities.
     EPA future attempts to justify the consent agreement on the basis that in 2003 the National Academy of Sciences (NAS) reported that there was no current reliable emissions data for animal agriculture facilities.
     Poultry industry organizations have observed and in a limited manner participated in the discussions leading up to the consent agreement. They do not however endorse this agreement and in fact continue to have concerns about the agreement including

• Growers signing the agreement have to agree, in advance to not challenge study results and adopt the technology deemed necessary, or lose the legal protection.
The following is a summary of key consent agreement provisions.

Summary of key AFO-CAFO consent
agreement provisions
•Participating AFOs will be required to:
     -Pay a civil penalty, ranging from $200 to      $100,000, depending on the size and number of      AFOs.
     -Pay up to $2,500 or industry pro-rata share      into a fund for a nationwide emis sions      monitoring study.
     -Make facilities available for monitoring.
     -Apply for all applicable air permits and
     comply with permit conditions.
     -Install pollution control equipment, if required      based on study results.
     -Report any qualifying releases of ammo nia      (NH3) and hydrogen sulfide (H2S) as required      by section 103 of CERCLA and section 304 of      EPCRA.
•Integrators can sign up for any company owned farms in the same manner as any other AFO.
•Integrators can also sign up independent contract grower farms.
     -Integrator to pay penalty and emissions study      fee for each contract farm, within the caps      outlined above.
     -A participating grower must sign up      independently, an Integrator sign-up does not      cover the grower.
•AFOs and integrators that satisfy these requirements will receive, from EPA, a covenant not to sue for violations of:
     -Clean Air Act permitting requirements from      animal confinement structures and agricultural      livestock waste lagoons, should study results      indicate such per mitting was required.
     -CERCLA section 103 and EPCRA sec tion      304 hazardous substance reporting      requirements arising from releases of (NH3) and      H2S from animal confine ment structures and      agricultural livestock waste lagoons, should      study results such reporting should have      occurred.
•Conditions and limits of the covenant not to sue:
     -The time period covered by the covenant is      from the date of the agree ment, until      termination of the agree ment, or 2011. -EPA      will continue to prosecute cases that may      present an imminent and sub stantial      endangerment to human health.

     -The covenant not to sue:
          •Applies to past violations and will           terminate after a short "cure" period           following the monitoring program.
          •Covers only violations related to emissions           from agricultural livestock and agricultural           livestock waste.
          •Does not cover emissions from generators           or other internal combustion engines, waste-           to-energy systems and land application of           animal waste, or emissions from sources not           participating in the Agreement.
          •Does not affect permits required for new           construction or modification of existing           AFOs.
          •Will be nullified if AFOs fail to comply           with state nuisance final orders relating to air           emissions.
     -AFOs that are subject to federal or state      enforcement actions under the Clean Air Act or      CERCLA section 103 or EPCRA section 304      may not be eligible to enter into the Agreement.
     -Should a grower elect not to install air      pollution control systems which the study      results indicates are necessary to comply with      the Clean Air Act, CERCLA or EPCRA, the      integrator will also lose the covenant not to sue      for this farm.
•Other provisions:
     -AFOs or integrators signing the agree ment      waive the right to challenge study results.
     -If inadequate funds are raised, the agree ment is      null and void.
     -New farms, which are constructed after the      sign-up period in the consent agree ment, are      not eligible to enter the agree ment.
     -New houses at expanding farms, or new      houses replacing older housing at an existing      farm, will not be covered by the covenant not      to sue, even if the existing housing was enlisted      in the agreement.
It would appear that a separate study based on dry manure facilities to access air emissions would be more reliable and practical. Although the AP & EA continues to study this situation and has not taken a position of endorsement we want to make it clear that this consent agreement is not a requirement to participate and is a voluntary program.
     AP & EA will keep you apprised of any
further action or development pertaining to
this issue.

The laws used as a basis for justifying the consent agreement were not intended by Congress to be applied to animal
All three organizations support the collection of emissions data and have repeatedly assured EPA the industry would fund such research. However, we also believe that imposition of a consent agreement, and payment of a civil penalty, in a situation where both EPA and NAS agree no accurate emissions data exist, is inappropriate.
If any broiler or turkey farms are in fact subject to these laws, it would only be the very largest ones. Therefore, we have urged EPA, but EPA failed to include, exclusion for farms anticipated to be below regulatory limits.
The concurrent schedules for comment on the proposed regulation and implementation of the regulations cast serious doubts on EPA's willingness to consider substantive comment on the agreement.
The monitoring program is reflective of the type of emissions from a liquid manure (i.e., lagoon system) handling method. The inclusion of hydrogen sulfide and VOC monitoring for dry litter broiler and turkey farms unnecessarily adds cost to the proposed study, and are inappropriate for these industry sectors.