By Kyle K. Weldon and Jim D. Bradbury
James D. Bradbury, PLLC
As we have written about in previous updates, uncertainty regarding emissions from animal feeding operations (AFOs) continues to confound regulators and enable environmental groups who seek to use regulations as a sword against animal agriculture.
Considering that AFOs do not have a single “smokestack” where emissions can be measured from, and the type and volume of emissions coming off these operations varies based on the species being raised, the diet of those animals, and how waste from the operations is managed (among other factors), determining how to calculate emissions is extremely difficult.
Despite these facts, and apparently frustrated with the slow progress in regulating AFOs, on June 28, several environmental groups, including Animal Legal Defense Fund and the Center for Biological Diversity, among others, provided the Environmental Protection Agency (EPA) with a Notice of Intent to Sue the EPA for what the groups describe as an “unreasonable delay in performing nondiscretionary duties to establish emission factors for animal feeding operations under” the Clean Air Act. In addition, the groups seek “to compel EPA to prepare these emission factors for AFOs.”
In this letter, the environmental groups complain that in the 30 years since the passage of the 1990 Clean Air Act Amendments, the EPA, in their opinion, has failed to prepare methods to estimate volatile organic compounds (VOCs) and oxides of nitrogen (NOx) from AFOs. In particular, the Clean Air Act requires the EPA to estimate the quantity of VOC and NOx emissions from sources of those pollutants. And, if no emission factors have been previously established for certain sources, the EPA is required to establish such factors. The groups argue that AFOs are major sources of VOC and NOx emissions, claiming that manure from AFOs produce over 215,000 tons of VOCs and approximately 5% of the country’s nitrous oxide emissions.
The environmental groups acknowledge that the EPA has attempted to establish VOC emission factors under the 2005 Air Compliance Agreement and the resulting National Air Emissions Monitoring Study. However, they argue that the study “suffers from critical study design and data flaws” and also was not designed to establish factors for NOx.
The groups state that they intend to sue the EPA in federal district court if the EPA does not resolve this issue within the next six months. Considering that this Notice is being provided to the Biden Administration’s EPA, it is unlikely that the election this fall will impact the EPA’s ability to prepare emission factors for these two pollutants in the near future. That said, animal agricultural groups will need to be aware and ready if and when the EPA is sued sometime in 2025 regarding these emissions.
Stay tuned for more to come.
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