Environmental Regulation
in Agriculture:
Production Constraint or Business as Usual?
Dr. Shannon L. Ferrell
Assistant Professor, Agricultural Law
OSU Department of Agricultural Economics
Today’s Program:
By land, sea, and air
• Dust in the wind
(and other stuff)
• Smoke on the water
(caused by atmospheric deposition of aerosols)
• This land is your land
(but you may not want it once they’re done with it)
Are THEY out to get US?
The Clean Air Act (CAA)
• “…to protect and enhance the quality of the
Nation's air resources so as to promote the
public health and welfare and the productive
capacity of its population.”
• Titles:
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I: Air quality standards protection
II: Emissions standards for “mobile sources”
III: Random stuff that didn’t go into other titles
IV: Acid Rain Program
V: Comprehensive air permitting program
VI: Ozone protection
“Criteria Pollutants”
• Sulfur dioxide (SO2)
– Source: combustion of fossil fuels
– Hazard: precursor to acid rain
• Nitrogen oxides (NOx)
– Source: combustion of fossil fuels
– Hazard: combines with VOCs to form smog,
respiratory danger
• Carbon monoxide (CO)
– Source: incomplete combustion of fossil fuels
– Hazard: respiratory danger
“Criteria Pollutants”
• Lead (Pb)
– Source: mineral processing, fuel additives
– Hazard: neurological system damage
• Ozone (O3)
– Source: photochemical reactions between
VOCs and Nox
– Hazard: respiratory danger
• Particulate matter (PM)
– Source: Omnipresent
– Hazard: aggravates respiratory conditions,
vector for other pollutants
PM10: Up close and personal
Source: Guide to Agricultural PM10 Best Management Practices,
Arizona Governor’s BMP Committee
Background:
The National Ambient Air Quality Standards
(NAAQS)
• Clean Air Act (CAA) requirement for NAAQS
• Primary NAAQS: Protect public health with
margin of safety; revise every 5 years
– Sole determinant is scientific evidence of health impacts
– No provision for economic impact in forming NAQQS, BUT
can be considered in control strategies
• States primarily responsible for enforcement via
State Implementation Plans (SIPs)
• Not directly enforceable, but lead to permit
limits
The proposed PM10 changes
• Time to revise the PM NAAQS…
Options considered:
– Leave PM10 standard as-is (150 μg/m3),
99th percentile
– Modify standard to 65-85 μg/m3 and use
98th percentile
– Effects on areas in attainment?
NCBA projection of nonattainment areas
under proposed PM10 standard
Sources: NCBA/Kansas Livestock Assoc., US EPA
NCBA projection of nonattainment areas
under proposed PM10 standard
Sources: NCBA/Kansas Livestock Assoc., US EPA
UC Davis San Joaquin Valley
PM10 Emission Factor Estimates
Source: Gaffney & Yu, 2003
EPA AP-42
• 7.5 mph combine
• 20 foot header
• 10 mph field speed
Estimated Beef Emission Factors
EPA Draft Report, 2001
100 TPY
threshold
5.4 lb/yr-AU
37,037 AU
20.0 lb/yr-AU
10,000 AU
How do you solve a problem
like particulate?
• Point sources:
– Individual permits
– Specified control
technologies
• Non-point (fugitive)
sources
– General permits
– Best Management
Practices (BMPs)
Maricopa County BMPs
• PM10 general permit – requires selection
of two BMPS per category
– Tillage and harvest
– Non-cropland operations
– Cropland operations
• Applies to anyone farming 10 contiguous
acres or more
Category I: Tillage and Harvest
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Cessation of Night Tillage
Chemical Irrigation
Combining Tractor Operations
Equipment Modification
Green Chop
Integrated Pest Management
Limited Activity during a HighWind Event
• Multi-Year Crop
• Planting Based on Soil
Moisture
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Precision Farming
Reduced Harvest Activity
Reduced Tillage System
Tillage Based on Soil
Moisture
• Timing of a Tillage
Operation
• Transgenic Crops
Category II: Non-Cropland
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Access Restriction
Aggregate Cover
Artificial Wind Barrier
Critical Area Planting
Manure Application
Reduce Vehicle Speed
Synthetic Particulate Suppressant
Track-out Control System
Tree, Shrub or Windbreak Planting
Watering
Category III: Cropland
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Artificial Wind Barrier
Cover Crop
Cross-Wind Ridges
Cross-Wind StripCropping
Cross-Wind Vegetative
Strips
Integrated Pest
Management
Manure Application
Mulching
• Multi-Year Crop
• Permanent Cover
• Planting Based on Soil
Moisture
• Residue Management
• Sequential Cropping
• Surface Roughening
• Transgenic Crops
• Tree, Shrub, or
Windbreak planting
The conclusion of the PM10 saga…
for now
• October 14: EPA announces (sorta) it will
maintain current PM10 NAAQS
• Doesn’t mean the story is over
– NAAQS reviewed every 5 years (sorta)
– Other criteria pollutants may concern
agriculture
– Other air regulations may come in to play
National Air Emissions
Monitoring Study
• Assessment of PM,
NH3, H2S and VOC for
broiler, layer, swine
and dairy AFOs
• Data to be used for
emissions factors for
poultry and livestock
operations
Pollutant emissions from
animal operations
Pollutant emissions from
animal operations
Other Air Concerns
• The infamous cow tax that never was
• “Difficulties in controlling enteric
fermentation”
• CERCLA reporting requirement for
100lb/day of hazardous material –
ammonia and hydrogen sulfide for animal
operations (cropping operations?)
• The potential CAA/CWA crossover…
CAFO Permitting
• March 15: 5th Cir. vacates requirement that
CAFO’s that “propose” to discharge must
obtain NPDES permits
• October 21: EPA proposes two CAFO
reporting options:
– Require all CAFOs to supply identifying
information
– Require CAFOs within “focus watersheds” to
supply identifying information
SPCC
• Amended implementation date to May 10, 2013 (original
date November 10, 2010, then November 10, 2011)
• Applicability
– Farms that “store, transfer, use, or consume oil or oil
products, such as diesel fuel, gasoline, lube oil,
hydraulic oil, adjuvant oil, crop oil, vegetable oil, or
animal fat AND
– Have a storage capacity of
• 1,320 US gallons in aboveground containers or
• 42,000 US gallons in completely buried containers
– AND “could reasonably be expected to discharge oil
to waters of the U.S.”
Preparing an SPCC plan
• If farm has a total storage capacity
between 1,320 and 10,000 gallons, AND
has a “good spill history,” operator can
prepare and self-certify plan
• Farms with larger storage capacities
(>10,000 gallons) or farms with previous
spills will require certification of the plan by
a PE
Requirements and management
practices for Farm SPCC plans
• Use suitable containers for petroleum products
• Identify contractors or other local personnel who
can help you clean up an oil spill
• Provide overfill prevention for your oil storage
containers
• Provide effective, sized secondary containment
for bulk storage containers and refill points
• Periodically inspect and test pipes and
containers
That wacky atmospheric
deposition thing…
• NOAA estimates agriculture responsible
for 80% of NH3 emissions
• Atmospheric NH3 has a life of a few days
as it readily reacts with other substances
– Sometimes forms particulates deposited to
water
• In at least one case, EPA has tried to
regulate atmospheric deposition of NH3 as
a CWA discharge
The Oklahoma Comprehensive
Water Plan
• 5 year process
• Currently in legislative formulation phase
– Bipartisan committee expected to conclude work
this month
– Bills to be placed “in hopper” by December
• Executive summary: 164 pages
• Total report length: 3,000 – 5,000 pages
http://www.owrb.ok.gov/supply/ocwp/ocwp.php
OCWP Recommendations
• Investigate development of more robust state
funding program for upgrade of state water
infrastructure
• Create Regional Planning Groups to assist in
planning and implementation of OCWP
initiatives
• Define calculations for excess/surplus water
• Continue evaluation of potential
instream/environmental flows
OCWP Recommendations
• Establish formal consultation process to resolve
Tribal water claims
• Incentivize voluntary initiatives to
reduce/recycle/reuse water, with emphasis on
irrigation, municipal/industrial uses, and
thermoelectric power
• Improve assessment of available water and
consider conjunctive water management where
appropriate
• Improve water quality and quantity monitoring
efforts
This land is your land
(but you may not want it back when they’re done with it)
Land
The definition game
• RCRA exception to hazardous waste:
– “The following solid wastes are not hazardous
wastes…drilling fluids, produced waters, and other
wastes associated with the exploration, development,
or production of crude oil, natural gas or geothermal
energy.”
• CERCLA petroleum exclusion:
– “‘Hazardous substance’…does not include petroleum,
including crude oil or any fraction thereof which is not
otherwise specifically listed or designated as a
hazardous substance…”
• CERCLA release exemption:
– “The term ‘release’…excludes… the normal application
of fertilizer.”
OCC-required tests prior to
application of drilling fluids
• Analysis required for salt-contaminated
soils or drill cuttings fluids to be applied:
– TDS or TSS or Cl
• Analysis for contaminated soils or cuttings
to be applied
– Gasoline Range Organics
– Total Petroleum Hydrocarbons
• AND, oh, by the way
– Soil parameters for the receiving soil must be
tested too
RCRA Non-exempt wastes
And why the heck do we care?
• CERCLA §107: “The owner or operator of
a vessel or facility… and any person who
at the time of disposal of any hazardous
substance owned or operated any facility
at which such hazardous substances were
disposed of… shall be liable for all costs of
removal or remedial action…”
D• CERCLA defenses for landowners:
– Innocent Landowner
– Bona Fide Prospective Purchaser
– Contiguous Landowner
• To qualify, all require “all appropriate
inquiry” and continuing obligations
– Environmental audit prior to purchase
– Cooperate with any cleanup efforts
– Institute / comply with land use restrictions
and institutional controls
So…
production constraint or
business as usual?
Environmental regulation in agriculture:
production constraint or business as usual?
• You pick the low-hanging fruit first
• Business as usual for everyone but us…
• …and we should probably get used to it
And what are we
supposed to do about it?
Federal Register Pages by Year
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Total Federal Register Pages
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And what are we
supposed to do about it?
• Embrace significance of administrative law
– MonitorFederal
administrative
processes
Register Pages
by Year
– Increased literacy in administrative law
– Improved administrative advocacy
– Enhance administrative accountability
90000
80332
78851
80000
77752
75795
Total Federal Register Pages
70000
82589
80700
78724
74402
69676
67702
68296
60000
• Farmers of the world unite… or at least get
remotely close to the same page
• The only constant is change
50000
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2001
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Thanks!
Shannon L. Ferrell,
OSU Department of
Agricultural Economics
shannon.l.ferrell@okstate.edu