Pork Producers, EPA Adopt New Emission Rules

Published April 1, 2005

The U.S. Environmental Protection Agency (EPA) has reached an agreement with the nation’s pork producers and other livestock operators to study and develop new emissions standards for livestock farms.

The agreement, reached January 21, stipulates that a panel of independent scientists will utilize the best available technology to develop forward-looking clean-air regulations, and EPA will then clarify exactly how clean air rules will apply to livestock farmers.

Should Resolve Ongoing Disputes

Ongoing disputes between EPA and livestock farmers motivated the agreement. EPA had been pursuing enforcement actions against a number of livestock farmers for alleged violations of the Clean Air Act; the Comprehensive Environmental Response, Compensation, and Liability Act; and the Environment Planning and Community Right-to-Know Act. However, farmers asserted, and EPA eventually agreed, that sufficient data are not available to establish compliance thresholds for livestock operations.

Explained Terry Fleck, executive vice president for the Indiana Pork Advocacy Coalition, as reported January 21 by the Brownfield Network, “About three years ago EPA and some states started trying to apply the nation’s air quality regulations to livestock and poultry farms without any type of scientific research as to a livestock farm’s impact on air quality. The pork industry told the EPA, you can’t do this to farmers when farmers had no idea their farms could come under air quality regulations.”

“EPA officials in both the Clinton and Bush administrations and scientists of the National Academy of Sciences agreed that sound scientific data was missing to enforce the current air laws,” added Dave Roper, chairman of the Environment Committee of the National Pork Producers Council (NPPC).

“Many believe that federal and state air regulators currently lack the information needed to correctly interpret current laws for animal production,” continued Roper. “Climate, animal numbers and age, and farm management are all key variables that affect emissions. Until science interprets these factors, livestock producers are at a loss to know if the laws apply to their farms.”

Deal Ensures Cleaner Air

Individual livestock farmers may choose whether or not to join the agreement. Farmers choosing to join will be immune from enforcement actions regarding past alleged violations. In return, they will pay moderate civil penalties (with the amount determined by the size of the livestock farm), fund the independent study into air emissions, make facilities open to government monitoring, and abide by future EPA regulations resulting from the upcoming scientific study. All farmers who join will have to pay the penalties, even if they have never been found to have released any pollution; the “civil penalty” will be the equivalent of a “consent agreement joining fee.”

Farmers choosing not to join the agreement will not have to pay the agreed-to civil penalties, but still may be open to EPA enforcement actions and still must comply with any future EPA regulations.

“This agreement is a huge stop forward,” said Thomas V. Skinner, EPA’s acting assistant administrator for enforcement and compliance assurance, in a January 21 news release. “It will allow us to reach the largest number of AFOs [animal feeding operations] in the shortest period of time and ensure that they comply with applicable clean air requirements.”

“The purpose of the agreement,” EPA’s news release stated, “is to ensure that AFOs comply with applicable environmental requirements and to gather scientific data the Agency needs to make informed regulatory and policy determinations. The agreement will establish an industry-funded emissions monitoring program that will help provide this information, leading to better tools to help the farm industry, the U.S. Department of Agriculture, and EPA determine the compliance status of feeding operations.”

Farmers’ Groups Urge Participation

Fleck strongly urged farmers to join the agreement. He explained, “When a farmer signs this agreement with EPA he is giving himself protection from any unknown past air quality violations. However, after the two-year study is completed, farms found to emit more than the thresholds will have to comply with the laws in the future, but past emissions are excused.”

Roper agreed. “This has been a long, exhaustive, and costly endeavor that NPPC has led on behalf of America’s pork producers for the past three years. I urge all pork producers to seriously consider signing the consent agreement.”

Will Preempt State Legislation

The agreement carries significant importance for states contemplating their own emissions standards. In Iowa, for example, activist groups are trying to convince state legislators that federal regulations are not strict enough on livestock farmers.

The upcoming independent study and resultant federal rules will likely satisfy legislators who doubt that federal rules safeguard human health and the environment. A patchwork of competing state laws would make compliance difficult for livestock farmers and would likely raise consumer meat prices.

“National restrictions on air emissions will lower air emissions from livestock and poultry farms across the country,” said NPPC President Keith Berry, a pork producer from Greencastle, Indiana.

James Hoare ([email protected]) is managing attorney at the Syracuse, New York office of McGivney, Kluger & Gannon.