EPA Inspector General criticizes EPA for foot dragging

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EPA’s Inspector General (IG) claims EPA has not developed emission estimation methods (EEM) to determine whether concentrated animal feeding operations (CAFOs) comply with the Clean Air Act (CAA).

The IG Report, while not receiving much publicity, will eventually impact animal feeding operations throughout the country. The report on September 19, 2017 is on EPA’s website at www.EPA.gov/oig. It is an opinion of the Inspector General and does not reflect EPA’s position.

Environmental groups have been using petitions to force regulation of ammonia, for example. Millions of dollars were spent by livestock groups and others to develop EEMs for “estimating emissions” from animal production facilities.

EEMs are difficult to determine and consequently EPA has never set a timeline for completing its work. Even though this effort began in 2005 with an agreement, EPA has suggested that it will have a plan on how to estimate emissions from animal operations by the beginning of 2018.

In the 40-page report, IG declares EPA is years behind schedule. EPA estimates there are approximately 450,000 animal feeding operations (AFOs) scattered throughout the United States. It also estimates there are approximately 18,000 large CAFOs in the United States.

For some time, EPA has recognized it does not have sufficient data about air emissions coming from AFOs or CAFOs.

EPA has looked at regulating animal facilities under the Clean Air Act ( CAA), the Emergency Planning and Community Right-to-Know Act (EPCRA), and the Superfund Act, known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

EPA and the environmental groups have sought for years to determine a way to regulate ammonia. EPA claims ammonia “Can cause severe cough and chronic lung disease. It also contributes directly to the formation of PM2.5 and deposition can impact sensitive ecosystems.”

Because EPA staff has little or no understanding of agriculture, they seem to not understand how rapidly ammonia dissipates in the atmosphere. (Cases I have tried for the CAFO industry clearly demonstrate through expert testimony that EPA’s concerns are not well founded.)

EPA has also found it extremely difficult to measure actual number of pounds of ammonia coming from an AFO or CAFO because of varying conditions and varying growth rates of animals.

EPA also relies on outside studies to conclude that air emissions from AFOs and CAFOs impact property values. These studies claim “Residential property values were reduced by an average of almost 23 percent within 1.25 miles of a large swine AFO.” (I have been involved in 13 major CAFO cases and I have never seen this charge substantiated.)

EPA also relies on a study which claims “The closer children go to school near a large AFO, the greater the risk of asthma symptoms.” Another study EPA cites claims, “living in close proximity to large swine AFOs may result in impaired mental health and negative mood states, such as tension, depression or anger.”

The IG’s report reviews the provisions of the agreement between the livestock industry and EPA. Approximately $15 million was collected to fund emissions estimation studies and develop a framework for field sampling. EPA entered into 2,568 separate agreements with owners and operators of livestock facilities in 42 states. EPA believed that the 13,900 animal operations represented 90% of the largest operations in the United States.

The IG interviewed animal operators and of course, spent time interviewing “agriculture” experts such as the Sierra Club, Food and Water Watch, Earth Justice, Waterkeeper Alliance, and the North Carolina Justice Network.

There is also a section in the report indicating the EPA Science Advisory Board (SAB), which criticized EPA’s data and methodology used to develop emission numbers. The IG concludes that EPA’s air emissions proposals after 11 years are mainly on hold.

Chapter three of the IG report, in typical bureaucratic fashion, claims “EPA needs to implement systematic planning to ensure that EEMs have sufficient quality.” Chapter three is worth reading and deciphering.

The one ominous recommendation on page 29 of the report suggests EPA notify all participants in the EPA study “…that the release and covenant not to sue for those emission sources and pollutant types will expire in accordance with paragraph 38 of the 2005 air compliance agreement.”

Paragraph 38 in the Federal Register Jan. 31, 2005, p. 4965 seems to suggest a CAFO can be sued 120 days after the agreement expires.

This issue is not going away.

(This column first ran in Farm Futures on September 26, 2017)

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About Gary Baise

Gary H. Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Bode Matz PC. Specializing in agricultural and environmental issues, he also serves as outside General Counsel for the U.S. Grains Council, Agricultural Retailers Association, and National Sorghum Producers.

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