Air emissions and CAFOs: Understanding the changes

Darren Olsen, Ag Nutrient Management Editor

The recent ruling regarding compliance by the animal husbandry industry to the EPA’s hazardous substances requirements under both CERCLA and EPCRA has left many producers wondering what needs to be done. This article is not intended to answer every question, but will hopefully guide producers who need to comply with some of the answers they are looking for. If you still have questions, it is recommended you contact your attorney or state department over environmental quality. Each operation is different, so the answers provided here are merely a starting point for producers.

Question: What is CERCLA and EPCRA and who should be concerned about complying with their requirements?
The Comprehensive Environmental Response and Liability Act (CERCLA) was set up to serve as a way for industries to keep the EPA informed of potentially damaging releases of hazardous substances to the environment. The recent ruling has exempted all animal husbandry facilities from reporting any emissions under CERCLA that occur under normal animal-raising practices. Producers should be aware that if emissions occur that are not part of the daily operation (a large liquid fertilizer spill or loss of manure containment, for example), they are still required to report this incident to the proper authorities as soon as they are able to. This has and will continue to be the case in these atypical situations for all producers.

Under the Emergency Planning and Community Right-to-Know Act (EPCRA), all small- and medium-sized CAFOs have received an exemption from reporting air emissions. Large CAFOs, however, did not receive this exemption. It was assumed from the proposal by the EPA in 2007 that all animal husbandry facilities would be exempt from both requirements, but the wording changed in the final draft, creating the confusion.

For those large CAFOs who signed up under the EPA’s Air Consent Agreement, a temporary window in liability is in effect. This will end when the study is finalized, so it is important for even these operations to become familiar with the reporting process. Because all animal facilities were given an opportunity to sign up under the agreement, there is no grace period offered for compliance for those who did not do so originally.

Question: How do I determine what hazardous substances my farm might be emitting?
For animal production facilities, there are two compounds which should be considered under the new ruling, ammonia and hydrogen sulfide. Other substances, such as nitrogen oxide and other volatile organic compounds, are also under consideration, but most experts agree that production facilities do not produce these in amounts that would qualify as a reportable quantity.

Ammonia occurs at a rate that most facilities under the ruling will need to report. Although extremely noticeable by smell, hydrogen sulfide will generally not be produced on facilities at reportable quantities until a threshold nearing 20,000 animal units is met by a single facility. Only the largest facilities in the U.S. should be concerned with reaching the reportable quantity for this compound.

What exactly is the reportable quantity I have to exceed to submit a report?
The reportable quantity for any of the hazardous substances listed above is 100 pounds of a single substance released to the atmosphere over 24 hours. There are other amounts for mixtures of substances, but operations should just have to look at ammonia and hydrogen sulfide.

The report asks me to determine a “good faith air emissions”. How do I go about determining this amount?
Part of the problem surrounding this requirement is that air emissions from livestock facilities are still not well understood and continue to be studied. While there is no exact way to determine this amount for each facility, there are some estimators available for you to look at. Local or state extension offices can help producers get ahold of methods for estimating and the EPA (www.epa.gov) also has a list of references for appropriate estimation. It is a good idea to look for emission estimators that can be tailored to both site and species variables as each will play a factor in determining the amount of hazardous substances a site releases.

One such estimator can be found at the University of Nebraska website: http://water.unl.edu/c/document_library/get_file?folderId=67759&name=DLFE-3635.pdf. It is important to remember you keep the information generated by this form at your location. You may be asked to show how you determined your emissions, so keep them on hand.

How do I complete the report?
The report to fill out is the “Continuous Release Reporting Form”. Copies can be obtained from the EPA or your Local Emergency Planning Committee (LEPC) office. You will need to know the upper and lower release thresholds (as determined by using an ammonia estimator), the longitude and latitude of the operation reporting the emissions and any pertinent contact information about the operation. If you have any questions, it is best to contact your attorney to make sure you are filling the form out correctly. While they are not difficult, it is important to include all needed information to make sure you are in compliance with the law. Many extension universities have added sample forms to their animal husbandry sites which provide a good example of what is needed to complete them.

Once the form is completed it is necessary to phone your local LEPC office and your state department of environmental quality. The following dialog should be used as a guide when calling:

“Hello. My name is {your name} and I am calling on behalf of {name of your operation}. The operation I am calling about may be releasing continuous air emissions of ammonia (or hydrogen sulfide for large operations) in excess of the reportable quantity of 100 pounds in 24 hours. This notification fulfills my requirement to report releases in EPCRA section 304. Until today, I felt my operation was not liable for reporting these emissions and am now doing so as a precaution to ensure that I am in compliance with the law. I will be filing a written report of this release within 30 days. Thank you.”

It is important to remember that an updated report will need to be filed each year from the date you first report it. This updated report will keep you in compliance with the laws as they currently stand.

What will happen when I file this report?
It is understood that nothing will happen to your facility when you file this report unless some type of local emergency response is deemed necessary. The EPA has stated they find it unnecessary to respond to any notification of release generated from animal production and there is good reason to believe otherwise.

It is important to know that large CAFOs are encouraged by all informed parties to comply with this reporting requirement. Failure to do so can result in fines up to $25,000 a day and criminal charges of up to five years in jail. As these laws have not been tested regarding animal production facilities, no one know the precedence of what will happen to those who do not comply. It is felt activist agencies will try and obtain information regarding operations who have not filed these reports and use their non-compliance against them.

While these rules are new to agriculture, it is imperative any operation who feels they need to report their air emissions under the EPCRA law do so as soon as they are able to. As always, please consult your legal team to make sure you are in compliance with all laws. This is not a time to sit around and think something will not happen to you. Also, if you have changes to your operation through expansion, it is important to fill out a report as soon as you cross the large CAFO threshold. This is one time where the old adage of ‘ignorance is bliss’ can come back to haunt you. ANM