Transcript Air Quality Regulation of Agriculture

Air Quality Regulation of
Agriculture - A Legal Perspective
David E.Cranston
Greenberg Glusker LLP
[email protected]
Animal Feeding Operations in
California
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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.3d 826, 838 (9th 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. § 7513a(b)(1)(B)
• Menu of choices
• Approved into SIP
• Petition for Review before 9th 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