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September 28, 2009Client Alert

Enviros Petition Environmental Protection Agency to Regulate Concentrated Animal Feeding Operations as Stationary Sources under the Clean Air Act

On Tuesday, September 22, 2009, several environmental groups petitioned the U.S. Environmental Protection Agency (“EPA”) to undertake a rulemaking that would list concentrated animal feeding operations (“CAFOs”) as “stationary sources” pursuant to the Clean Air Act (“CAA”) and promulgate air emission performance standards for all new and existing CAFOs. Petitioners include the Humane Society of the United States, Association of Irritated Residents, Center on Race, Poverty and the Environment, Clean Air Task Force, Dairy Education Alliance, El Comité para el Bienestar de Earlimart, Environmental Integrity Project, Friends of the Earth, and Waterkeeper Alliance.

A “stationary source”, as defined by the CAA §111(a)(3) means, “any building, structure, facility or installation which emits any air pollutant.” Section 111(b)(1)(A) of the CAA requires EPA to regulate a category of stationary sources if, in EPA’s judgment, such a source “causes ,or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Petitioners argue that emissions from CAFOs endanger public health or welfare and, as such, EPA must regulate CAFOs under the CAA.

The petition specifically requests EPA undertake rulemaking that:

  1. Finds that the air pollutants hydrogen sulfide and ammonia constitute air pollution that endangers U.S. public health or welfare;
  2. Announces the Administrator’s judgment that emissions of methane, nitrous oxide, hydrogen sulfide, ammonia, volatile organic compounds, and particulate matter from CAFOs contribute significantly to air pollution that is reasonably anticipated to endanger public health and welfare;
  3. Lists CAFOs as a category of stationary sources pursuant to Section 111(b), of the Clean Air Act,42 U.S.C. § 7411(b); and
  4. Promulgates for CAFOs performance standards for air emissions of methane, nitrous oxide, hydrogen sulfide, ammonia, volatile organic compounds, and particulate matter from new and existing CAFOs pursuant to the authority of sections 111(b) and 111(d) of the Clean Air Act, 42 U.S.C. §§ 7411(b), (d).

As it reviews the petition, EPA may also provide an opportunity for public review and comment on the petition. As a formal response, EPA may deny the petition and not undertake any rulemaking; or it may accept the petition, make a finding that emissions from CAFOs do in fact endanger public health or welfare and then proceed to promulgate performance standards for new and existing CAFOs.

If EPA decides to regulate CAFOs as stationary sources pursuant to the CAA, it will likely have major implications on the agriculture industry, due in large part to the difficulty in measuring and controlling emissions from agricultural facilities. In fact, because of these precise difficulties and on the recommendation of the National Academy of Sciences, EPA spearheaded a comprehensive study to better understand emissions from livestock facilities. The goal of the study is to eventually develop effective regulations that are practical in light of the difficulties posed by this particular industry. EPA expects the study to be completed in 2009 and will develop emission estimating guidelines within 18 months of the completion of the study.

For more information, please contact one of the authors of this alert.

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