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Kneecapping CERCLA Won’t Get Rid of Air Pollution from Ag

Climate Justice

Who doesn’t want to breathe clean air?

Unfortunately, a “bipartisan” bill now working its way through the Senate would undermine our ability to address a growing source of air pollution – livestock operations. The so-called Fair Agriculture Reporting Method Act (S. 2421), or the “FARM Act,” would amend the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as the Superfund law, to exempt agricultural producers from reporting toxic air emissions. The bill’s clever name is a misnomer: it lets livestock producers stop reporting emissions altogether. Its passage would seriously undermine our ability to address a growing pollution problem that disproportionately impacts rural communities and socially disadvantaged Americans.

To understand how the FARM Act came about, we have to go back 20 years. That’s when the Environmental Protection Agency (EPA) realized that it had insufficient emissions data from animal feeding operations (AFOs) – industrial-style farming facilities in which animals are kept in confined spaces – to determine when Clean Air Act (CAA) permit requirements or CERCLA and Emergency Planning and Community Right to Know Act (EPCRA) requirements were being triggered. Such facilities produce large quantities of manure with related harmful air emissions. After several years of negotiation, EPA entered into a consent agreement in 2005 with 2,600 AFOs to, among other things, study emissions from 24 facilities in nine states. EPA estimated that by 2009, it would start publishing AFO emissions estimating methodologies for use by states and localities to determine applicability of CAA or other pollution regulations.

That’s not what happened. Instead, EPA issued a rulemaking in 2008, the last year of the Bush administration, that generally exempted livestock facilities from CERCLA and, except for the largest AFOs, called Concentrated Animal Feeding Operations (CAFOs), EPCRA public reporting requirements. That rulemaking was struck down last year by the D.C. Circuit Court of Appeals, which, among other things, found a lack of support for EPA’s rationale that reporting requirements of toxic air releases are “useless.” Coincidentally, in 2017, EPA’s Office of the Inspector General (OIG) issued a scathing report detailing the agency’s failure to develop credible emission estimation methods to determine air quality compliance. OIG cited as contributing factors limitations in the aforementioned study data and a lack of expertise and resources at EPA regarding agricultural air emissions. In response to the D.C. Circuit’s decision, EPA has asked for stays until this May to refine its CERCLA reporting guidance.

The same lack of AFO data and agriculture emissions expertise that has dogged EPA over the last two decades doesn’t bode well for implementation, which requires credible emissions methodologies and clear guidance.

At the same time, amending CERCLA to exempt livestock operations, as S. 2421 would do, is a horrible policy response. Doing so would only foreclose our existing legal avenue for assessing and addressing CAFO air emissions.

Proponents of the bill say that Congress never intended CERCLA to apply to agricultural producers. But the clear language of CERCLA is intentionally broad and sweeping. The law was passed after the Love Canal disaster. Love Canal was a planned community in Niagara Falls, New York, which, as residents later tragically discovered, was built on a cesspool of dumped chemicals. This pollution caused serious health problems, including leukemia. CERCLA authorizes a federal “Superfund” “to clean up uncontrolled or abandoned hazardous-waste sites, as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment.”

When CERCLA was passed in 1980, no one in Congress was looking into a crystal ball and predicting that by the 21st century, most of our meat would come from CAFOs. By any measure, the industrialization of meat production since the 1980s has been stunning. A 2006 report by the Economic Research Service of the U.S. Department of Agriculture detailed the transformation and concluded that the consolidation and industrialization of the livestock industry has been driven by financial pressure to increase productivity and lower production cost. 

U.S. livestock production is shifting to much larger enterprises, in part because of scale economies. Between 1987 and 2002, the production locus (the farm size, in annual sales, at which one half of national production comes from larger farms and half from smaller) increased by 60 percent in broiler, 100 percent in fed-cattle, 240 percent in dairy, and 2,000 percent in hog production. Recent surveys indicate that production has continued to shift to larger operations since 2002.

Moreover, these industrial farming operations can be almost unimaginably large. For example, EPA defines a large CAFO for laying or broiler hens as more than 30,000 birds. And that’s a floor. A poultry CAFO can reach into the millions, producing tons of feces and large amounts of ammonia, hydrogen sulfide, volatile organic compounds (VOCs), and particulate matter. The first two pollutants are not currently regulated by the Clean Air Act, but they are regulated as hazardous substances under CERCLA.

An unfolding drama in a rural Arizona community strikingly illustrates how CERCLA is often the only protection many communities have against harmful agricultural air pollution. Hickman’s Family Farm in Tonopah, Arizona houses four million chickens in about a dozen, largely automated hen houses. The operation produces a billion eggs a year. Local residents tried unsuccessfully to block construction of the facility in 2014. Since then, they have lodged, without much success, hundreds of air quality complaints with the county and state, citing putrid odors and air quality concerns. The state maintains that it doesn’t regulate ammonia because it is not regulated under the Clean Air Act. The county could regulate for odor, but it hasn’t.

The county supervisor representing Tonopah happens to be Clint Hickman, who is also vice president of sales and marketing for Hickman Family Farms. Conveniently, he took the supervisor seat in 2013, shortly before his family’s egg operation was built. In 2016, residents petitioned the board of supervisors for Hickman to recuse himself from votes on air quality, which he generally declined to do. In 2017, the Maricopa County Board of Supervisors proposed to significantly downgrade its air quality regulation by removing odor and gaseous substances from its coverage. That same year, three dozen people residing near the poultry CAFO sued Hickman Farms for nuisance, arguing the facility posed serious public health threats, including ammonia and hydrogen sulfide emissions. 

Just this past month, after years of community advocacy had gone nowhere, the Agency for Toxic Substances and Disease Registry (ATSDR) began working with the local community to investigate air quality near Hickman’s facilities. ATSDR, a federal agency under the Centers for Disease Control and Prevention (CDC), is authorized under CERCLA and performs several vital functions to address the public health effects of hazardous substance releases into the environment. ATSDR is able provide this assistance because, as noted above, ammonia and hydrogen sulfide, common emissions from CAFOs, are listed as hazardous substances under CERCLA.

CAFOs are not going away. In fact, livestock production will likely intensify given global population growth and increased demand for meat. Passing S. 2421 would hobble CERCLA’s reporting authority, the main vehicle we have for  understanding, quantifying, and addressing air emissions from CAFOs. At the same time, EPA’s response to agriculture emissions under CERCLA has been mismanaged, owing to a lack of resources, expertise, and will. But poor administration and lack of resources can be remedied. A policy commitment with resources sufficient to ensure the scientific study of agricultural air pollution, the development of emissions measurement methodologies based upon that research, and the development and application of best management practices to prevent harmful emissions is the common-sense path forward. This kind of balanced policy approach would be fair to both producers and the people who live and work near such facilities.

Climate Justice

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