Air Quality Regulation of Agriculture — A Legal

Air Quality Regulation of Agriculture - A Legal Perspective David E. Cranston Greenberg Glusker LLP Dcranston@ggfirm. com

Animal Feeding Operations in California • • 1500 dairies in San Joaquin Valley alone Emissions of concern - VOCs and PM 10 Permitting commenced in 2004 Understanding of emissions sources and volume continuing to develop • Operations vary considerably • Need for flexibility in controls

Pre-2004 Permitting Authority of California Air Districts • Authority to permit “any article, machine, equipment, or other contrivance” (H&SC § 42300) • Agricultural Equipment Exemption (former H&SC § 42310(e)) – Historical interpretation by regulators was very broad

Challenge to Ag Exemption • 2002: Suits challenging EPA approval of SIP • 2003: EPA finding that SIP deficient and calling for repeal of Ag exemption (68 FR 37746) • 2003: Enactment of SB 700

SB 700: Effective 1/1/2004 • Eliminated agricultural exemption • Requires permitting of “Agricultural Sources” as required under Title I and Title V • Requires rulemaking and then permitting of Large Confined Animal Facilities (“LCAF”) – Rulemaking to be completed by July 2006 for SJVAPCD (H&SC § 40724. 6) – LCAF later defined by CARB as 1000+ milkproducing cows

San Joaquin Valley APCD • Interpreted SB 700 to require all existing and new dairies above statutory threshold (50% of major source = 12. 5 tons/yr for VOCs) to be permitted • If above threshold, then NSR would be triggered for new or expanding dairies • Not what dairy industry thought they were getting under SB 700

2004: Very limited science available for permitting dairies • Only emission factor (used by CARB for inventory purposes) based on discredited 1938 Study of total organic gases. • 2004 Emission Factor viewed as unreliable by Industry, Scientists and even CARB.

Litigation against District WUD/AWMP v. SJVAPCD • Grounds for Dairy Industry Suit – Challenged authority to require dairy permits until § 40724. 6 rulemaking completed – Challenged application of EF based on 1938 study to permitting thresholds

Settlement of WUD/AWMP v. SJVAPCD • Creation of Dairy Permitting Advisory Group • Analysis and research into dairy emissions • Collaborative evaluation of best available control technology

Emission Factors • Source of VOC emissions – Waste (manure and urine) – Waste handling areas including lagoons and corrals – Feed – Enteric Emissions • Source of emissions more important than volume • EPA study & Consent Decree • Studies ongoing • Impact on BACT

Need for Flexible Regulation • EPA: “[f]lexibility is needed in any program controlling agricultural sources. ” 71 FR 7683, 7684 (February 14, 2006) • “Agricultural sources are unlike other stationary sources and are unlike sources such as automobiles that have common design features and may be subjected to a common or uniform control measure. ” Vigil v. Leavitt, 381 F. 3 d 826, 838 (9 th Cir. 2004).

Rule 4550 - PM 10 Rule for Agriculture • Driven by 2003 PM-10 Plan Commitment • CAA: Best Available Control Measures (BACM) 42 U. S. C. § 7513 a(b)(1)(B) • Menu of choices • Approved into SIP • Petition for Review before 9 th Cir. (LIF v. EPA) – Cafeteria Plan does not meet BACM • Valley now in attainment of PM-10 Standard (but finding challenged by Earth Justice)

Rule 4570 - VOC rule for LCAFs • Required by SB 700 (Health & Safety Code § 40724. 6) • Best Available Retrofit Control Technology (BARCT) • Menu of Choices • Dairies with less than 1000 milking cows exempt • Writ of Mandate in Fresno Superior Court (AIR v. SJVUAPCD) – Does flexible Menu Plan meet BARCT?

CAA Suits against Individual Operators • AIR v. Schakel and AIR v. Vanderham (E. D. Cal. ) • Commencement of construction without ATC permit and NSR

Future Challenges to Authority to Construct Permits • First LCAF ATC permit issued to Foster Farms – permit challenged in CAA suit. • ATC permits issued to dairies may suffer same fate. • Emission Reduction Credits and BACT will be key issues: – ERCs and SB 700: If can’t sell them, Districts can’t make you buy them – Environmental groups have challenged this position – BACT: achieved in practice?

Other Issues on Horizon • For the first time – permitting and regulating emissions from living things – District’s definition of air contaminant – “release, discharge. . . caused by man. ” – If enteric emissions from animals can be regulated - are VOC emissions from crops next? • Ammonia Emissions • Greenhouse Gases (AB 32)

New Ozone plan • Where will the VOC reductions come from? • Does agriculture present regulators with perception of low hanging fruit from which to obtain reductions?

Conclusion