In late January, six environmental groups filed a complaint in U.S. District Court in the District of Columbia claiming that EPA violated their rights by not responding to a 2011 petition to regulate ammonia as a pollutant under the Clean Air Act.
The environmentalists request that EPA be found in violation of the Administrative Procedures Act and request the court order EPA respond within 90 days as to whether ammonia should be regulated under certain sections of the CAA.
Of course, the group wants EPA and you the taxpayer to pay the attorneys' fees and all other reasonable expenses created by this lawsuit.
The complaint does identify numerous industries which generate ammonia emissions such as fertilizer plants, coal plants, sewage treatment plants and natural sources. But it says the dominant generator of ammonia is from livestock production. The complaint estimates there were 20,000 CAFOs nationwide in 2011.
The complaint claims exposure to ammonia from CAFOs can cause acute and chronic health impacts "…including eye, nose, throat, and chest irritation, headache, dizziness, urge to cough, and general discomfort."
The complaint does say government agencies have set workplace exposure limits for ammonia but never tell you about those levels. Let's examine the numbers.
The Agency for Toxic Substances and Disease Registry says that ammonia exists naturally in the air at levels between 1 and 5 ppb. It claims that after fertilizer is applied to farm fields, the ammonia in soil can be more than 3,000 ppm (30,000 ppb) and these levels, of course, decrease rapidly in a few days.
OSHA has set an 8-hour exposure limit of 25 ppm (25,000 ppb) and a 15 minute exposure limit of 35 ppm (35,000 ppb) for ammonia in the workplace. The research arm of OSHA has recommended the ammonia level in a work room be no more than 50 ppm (50,000 ppb) per 5 minutes of exposure.
The environmental groups are seeking to have EPA regulate ammonia under three sections of the Clean Air Act…108, 109, and 110. Section 108 of the CAA requires the EPA Administrator to regulate an air pollutant if the emissions of the air pollutant, in the Administrator's judgment, "…cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare." The section also describes that the air pollutant must come from numerous sources and that no air quality standard had been published earlier.
Once a pollutant is listed for regulation under Section 108, Section 109 requires the agency to set a primary standard which protects the public health and that includes the health of sensitive populations. A secondary standard must also be developed under Section 109 which must protect public welfare which includes effects on soil, water, vegetation, wildlife, weather, and damage and deterioration of property.
All this work is done by EPA without any consideration for costs.
Once the standards are issued by EPA after public comment, they are turned over to the states under Section 110 for implementation. The state then determines how to meet the new standard. It is this action the environmental groups are seeking to force EPA to implement.
Who are they?
Six environmental organizations are telling EPA it must regulate ammonia emissions from CAFOs. I will describe four of them. The lead plaintiff is Environmental Integrity Project, located in Washington, D.C. EIP claims it advocates for clean air laws and focuses on operations which endanger public health and welfare because of their unrestricted pollution.
The second plaintiff is Center for Food Safety, also from D.C. This group claims it uses litigation to "…promote transparency and accountability in the factory farm industry."
The third plaintiff is the Humane Society of the United States, also headquartered in D.C., and its mission is "…to create a humane and sustainable world for all animals – including people and communities …" HSUS says it actively campaigns to regulate air pollutants emitted by CAFOs.
Plaintiff Iowa Citizens for Community Improvement is a grass root Iowa vehicle for social, economic and environmental justice.
These plaintiffs sue EPA frequently and win. CAFO operators need to follow this case closely.
Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.