Environmental Regulation in Agriculture: Production Constraint or Business as Usual?

1. Environmental Regulation in Agriculture:Production Constraint or Business as Usual? Dr. Shannon L. Ferrell Assistant Professor, Agricultural Law OSU Department of Agricultural Economics

2. 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)

3. Are THEY out to get US?

4. Dust (and other stuff) in the wind Regulation of Air Emissions in Agriculture

5. 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: • 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

6. “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

7. “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

8. PM10: Up close and personal Source: Guide to Agricultural PM10 Best Management Practices, Arizona Governor’s BMP Committee

9. 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

10. 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?

11. NCBA projection of nonattainment areas under proposed PM10 standardSources: NCBA/Kansas Livestock Assoc., US EPA

12. NCBA projection of nonattainment areas under proposed PM10 standardSources: NCBA/Kansas Livestock Assoc., US EPA

13. UC Davis San Joaquin ValleyPM10 Emission Factor EstimatesSource: Gaffney & Yu, 2003

14. EPA AP-42 7.5 mph combine 20 foot header 10 mph field speed

15. 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

16. 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)

17. 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

18. Category I: Tillage and Harvest • Cessation of Night Tillage • Chemical Irrigation • Combining Tractor Operations • Equipment Modification • Green Chop • Integrated Pest Management • Limited Activity during a High-Wind Event • Multi-Year Crop • Planting Based on Soil Moisture • Precision Farming • Reduced Harvest Activity • Reduced Tillage System • Tillage Based on Soil Moisture • Timing of a Tillage Operation • Transgenic Crops

19. Category II: Non-Cropland • 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

20. Category III: Cropland • Artificial Wind Barrier • Cover Crop • Cross-Wind Ridges • Cross-Wind Strip-Cropping • 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

21. 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

22. 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

23. Pollutant emissions from animal operations

24. Pollutant emissions from animal operations

25. 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…

26. Smoke on the water(caused by atmospheric deposition of aerosols)

27. 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

28. 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.”

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. This land is your land (but you may not want it back when they’re done with it) Land

36. 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.”

37. 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

38. RCRA Non-exempt wastes

39. 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…”

40. 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

41. So…production constraint or business as usual?

42. 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

43. And what are we supposed to do about it?

44. And what are we supposed to do about it? • Embrace significance of administrative law • Monitor administrative processes • Increased literacy in administrative law • Improved administrative advocacy • Enhance administrative accountability • Farmers of the world unite… or at least get remotely close to the same page • The only constant is change

45. Thanks! Shannon L. Ferrell, OSU Department ofAgricultural Economics shannon.l.ferrell@okstate.edu