Air Quality Regulation of Agriculture - A Legal Perspective David E.Cranston Greenberg Glusker LLP...
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Transcript of Air Quality Regulation of Agriculture - A Legal Perspective David E.Cranston Greenberg Glusker LLP...
Air Quality Regulation of Agriculture - A Legal
Perspective
David E.CranstonGreenberg Glusker LLP
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+ milk-
producing 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