18 years and counting: EPA still has no method for measuring CAFO air pollution

By: - April 21, 2023 6:45 am

A typical pen format for swine in many animal feeding operations (Darrell Hoemann/Investigate Midwest).

This story was originally published by Investigate Midwest

When gases from large livestock facilities overwhelm communities, the health impacts can be severe.

Children at schools near concentrated animal feeding operations, or CAFOs, are more likely to experience asthma. Exposure to ammonia and hydrogen sulfide — both emitted in large quantities by CAFOs — can lead to chronic respiratory issues, and in some cases, cause damage to the nervous system.

In states like North Carolina and Ohio, families that are Black, Hispanic or low-income are more likely to suffer the consequences.

Yet 18 years after starting to develop methods to measure and control air pollution from livestock operations, the Environmental Protection Agency still has not complied with its own mandate to protect Americans from the harmful health effects of air pollution from big farms.

And thanks to an agreement between the EPA and livestock industries, thousands of CAFO owners are shielded from some EPA penalties while the process of developing tools to measure emissions drags on.

“It’s a huge problem,” said Carrie Apfel, senior attorney in the Sustainable Food and Farming Program at Earthjustice, a nonprofit environmental justice legal organization. “The huge problem is that the agricultural lobby is hugely powerful and hugely influential, and I really think that has a lot to do with it.”

An EPA Office of Inspector General report that investigated the delay in 2017, however, indicates a lack of technical expertise and resources within the EPA is largely responsible for hampering the agency’s progress toward regulating air emissions from livestock operations.

Regardless, in CAFOs thousands of livestock animals live in covered barns, where they eat, drink and poop in mass quantities.

That manure, usually stored in tanks or lagoons, undergoes chemical transformations, releasing harmful chemicals into the air.

Under its authority provided by the Clean Air Act, the EPA sets limits for how much of these chemicals are emitted, but the agency still does not have a method for calculating how much pollutant a livestock facility produces.

For many other industries that cause air pollution, EPA scientists have created formulas to estimate how much pollutant a facility emits.

In 2005, the agency said it would finalize these models, called emissions estimating methodologies, or EEMs, for livestock operations by 2009. It still has not done so.

EEMs to be finalized this year 

The EPA published its first draft EEMs for CAFOs in 2012, but after receiving criticism from the agency’s Science Advisory Board, it did not publish revised drafts until 2020.

Since 2020, the agency has periodically published revised drafts of the livestock facility EEMs for various chemicals, including ammonia, hydrogen sulfide, particulate matter, and volatile organic compounds. However, the recent drafts do not address all of the Science Advisory Board’s recommendations.

The drafts will not be reviewed again by the advisory board, as the agency has moved beyond the peer-review portion of the EEM development process.

“Now that the draft emission models for all animal sectors are complete, EPA will review and revise all models before releasing the entire set of models for stakeholder review” later this year, EPA spokesperson Shayla Powell said in a statement to Investigate Midwest.

The agency will finalize the EEMs after a public comment period, Powell said. The agency did not specify when the public comment period would start.

Some environmental groups say the current EEM drafts for livestock operations are insufficient, and that the data forming the basis of the formulas are flawed, in large part because of livestock industries’ involvement in the research behind the EEMs.

“The study was designed to fail,” Tarah Heinzen, the legal director for Food and Water Watch, said. “It was largely designed by industry. It didn’t result in usable data, or complete data, even for the very small number of facilities that were studied.”

Environmental, industry groups await final models 

Hogs are raised on the farm of Gordon and Jeanine Lockie April 28, 2009, in Elma, Iowa (Scott Olson/Getty Images).

Food and Water Watch, which has worked on the issue of livestock operation EEMs since 2012, petitioned the EPA in 2021 to end the contract between EPA and CAFO owners because it provides legal protections to some CAFOs. The EPA has not yet responded to the petition, but did meet with the coalition once in August 2022.

Despite seeing insufficiencies in the current drafts, Earthjustice believes the EPA should finalize and enforce the drafts before working on improved versions.

Food and Water Watch said the EPA should “put an end to the federal amnesty and abandon the EEMs process entirely, because the flawed NAEMS study is incapable of producing viable emissions models. However, if EPA insists on finalizing EEMs, than at the very least it should not continue to provide amnesty to polluting CAFOs in the meantime.”

“The reality is that facts and science change over time, and emissions assumptions will also change over time,” the coalition wrote in its petition. “There is no end to that process. However, EPA can, and routinely does, estimate emissions from many sources of air pollution, including (animal feeding operations), using the best science available. The agency must do the same here.”

Andrew Walmsley, senior director of government affairs for the American Farm Bureau Federation, the largest lobbying group representing the agriculture industry, said the group is opposed to “air permits that are not science-based for farms.”

“Our policy also opposes mandatory standards because with (standards) would undoubtedly come enormous compliance costs, including permitting fees, and a mountain of new paperwork,” Walmsley said.

Two laws requiring facilities to report air emissions have been amended in recent years to exempt CAFOs from the rules, but the Clean Air Act still applies to livestock operations.

Under the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), livestock operations were among the facilities required to report emissions of ammonia and hydrogen sulfide that exceeded legal limits — until 2019, when the Trump-led EPA exempted CAFOs from the law. Environmental advocacy groups including Food and Water Watch sued the EPA to reinstate the reporting requirement for CAFOs, but the exemption remains in place.

A 2018 law passed by Congress — the FARM Act — also exempted livestock operations from reporting air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The EEM development process is one piece of a pattern of regulatory exemptions for large agriculture operations, said Carrie Apfel, senior attorney in the Sustainable Food and Farming Program at Earthjustice.

“I think that there’s a very strong but false narrative on the other side about the struggling farmer and how hard it is to comply with these regulations,” Apfel said. “When you do a deeper dive into the regulations themselves, the small family farmers aren’t emitting enough to trigger any sort of regulatory requirements. A lot of these regulations are really targeted at the big industrial agricultural facilities that are sophisticated and big enough to comply with these regulations.”

The Biden administration has said publicly it plans to revisit the EPCRA exemption for CAFOs, but has not yet moved forward with the rule.

If the Biden-led EPA does reinstate the reporting requirement, CAFOs that release pollutants in excess of EPCRA emissions thresholds of 100 pounds per day of ammonia or hydrogen sulfide would have to report the pollution to authorities. That information would be publicly available.

Even if the agriculture exception to EPCRA stands, livestock operations would still need to use the EEMs to determine their compliance with the Clean Air Act and obtain Clean Air Act permits, if they exceeded emissions thresholds, said Emily Miller, an attorney with Food and Water Watch.

Ray Atkinson, director of external communications for Smithfield Foods, one of the biggest pork companies in the U.S., said the company does not expect the EEMs to have a significant impact on Smithfield’s operations.

Both the National Milk Producers’ Federation and National Pork Producers Council told Investigate Midwest they would comment on the EEMs once the final versions are released by the EPA.

The National Pork Producers Council, which participated in the study of CAFO air emissions, noted that “EPA has an obligation to finalize these long overdue tools for producers to use.”

Associations representing the egg and poultry industries did not respond to requests for comment. Investigate Midwest also reached out to other large U.S. meat companies, including Tyson and JBS, but did not receive responses.

CAFOs protected from some EPA penalties

CAFOs were few and far between in the U.S. until the late 1990s, when the livestock system began to transform, becoming more concentrated. In states like North Carolina, and later Iowa and Minnesota, the quantity of large CAFOs rapidly increased over the last two decades.

Today, the vast majority of American meat comes from animals raised in CAFOs.

In the early 2000s, few studies measured the actual emissions from livestock barns. In response to the increasing concentration of CAFOs and the operations’ impact on human health, the National Academy of Sciences called on the EPA in 2002 to further study air emissions from CAFOs.

Without sufficient existing data to create emissions estimates, the EPA turned to the livestock industry for a solution.

Over the course of two years, the agency negotiated with the dairy, egg and pork industries to determine how to study CAFO emissions.

In 2005, the parties landed on a deal, called the Air Compliance Agreement.

Participating producers from each of the industries volunteered as potential study subjects and paid a one-time civil penalty, ranging from $200 to $1,000 per CAFO, depending on the facility’s size. (In recent years, companies in industries other than livestock found to be in violation of the Clean Air Act have paid multi-million dollar penalties.)

More than 2,500 owners and operators representing 13,900 animal feeding operations — more than 90% of the country’s CAFOs — paid penalties to the EPA.

Those penalties would pay for a study to collect emissions data from the CAFOs. The EPA would then use the data to create its EEMs, which would inform its enforcement of the Clean Air Act in the future.

In exchange for the industries’ participation and funding, the EPA promised not to sue the participating producers for certain past and ongoing violations of air emissions laws while the study and EEM development process were ongoing.

The contract would stay in effect until the EPA notified the CAFO owners that the EEMs had been finalized, or until the agency determined it would be unable to create the EEMs. It is still in effect today.

For 18 years, this agreement has shielded nearly 14,000 CAFOs from EPA penalties – yet only 25 facilities actually participated in the data collection.

At the time the agreement was established, meat companies were fearful of lawsuits and EPA penalties over the pollution they produced, said Garth Boyd, who represented Smithfield, one of the country’s largest pork companies, in the negotiations over the study and agreement.

All Smithfield operations at the time signed the contract, Atkinson told Investigate Midwest, and two of its facilities participated in data collection for the study, called the National Air Emissions Monitoring Study, or NAEMS.

Boyd remembers the consent agreement being “controversial” among those on the private industry side of the negotiations, because companies were hesitant to pay the upfront penalty and admit to emitting pollutants.

But others, including Boyd, believed the EPA was negotiating in good faith and that the agreement could protect companies from bigger fines in the future.

“At the time, it seemed to make sense to me to sign the (consent) agreement, because things were tense and it looked like it would possibly prevent penalties,” Boyd said.

John Thorne, a lobbyist representing livestock organizations in the negotiations, said the industries had a mixed response to the consent agreement.

“They were distrustful of anything the EPA had its stamp on,” Thorne said.

Thorne added that livestock industry leaders were fearful that the study and consequent EEMs would eventually force the companies to spend massive amounts of money to curtail emissions.

Critics question sufficiency of data

After working out a deal to fund the research, the industry and EPA stakeholders next needed to decide who would run the study.

The committee selected Albert Heber, Ph.D., agricultural air quality expert and professor at Purdue University, to oversee the study design and data collection for the NAEMS.

NAEMS, which collected data from 2007 through 2010, is still the largest study of its kind, Heber said.

Heber had consulted for both the EPA and for livestock producers, so he represented a middle ground between the EPA and the industries the agency regulates, he said. He had also served as an expert witness for both the EPA and livestock operators in nuisance cases.

“Environmental groups say the study is industry tainted,” Heber said. “So here’s my answer: It wasn’t tainted in any way. Purdue was totally independent in the selection of specific sites. I personally selected the sites. I personally selected the research team and oversaw the conduct of the study.”

Heber said he didn’t take directions from industry leaders, but he did discuss site selection with industry groups to understand which types of facilities were most common in each industry.

“The only part of the (study) design that they were involved with is, what type of barns and farms should be included?” Heber said. “That was a collaborative effort, but they have the information on what kind of farms they have.”

Heber’s team monitored emissions at 27 sites on 25 CAFOs in 10 states. (At two of the CAFOs, teams monitored multiple emissions sites.) The team monitored each site continuously for two years.

Heber said that he chose to monitor a smaller number of sites for a longer period of time to better understand how factors like weather and animal life cycles impacted emissions.

Critics, including some environmental groups and scientists, say that the data is insufficient to create rules for the entire country, and invalid because of the industry’s role in crafting the study.

“The sample size was not large enough, to be honest,” said Viney Aneja, Ph.D., an agricultural air quality expert and professor at North Carolina State University, who served on an EPA Science Advisory Board panel that reviewed the first drafts.

When the EPA published the NAEMS protocol for public review in 2005, many stakeholders submitted comments, concerned that the number of monitoring sites was too few to account for the diversity of livestock operations across the country.

The final dataset that forms the basis of the draft EEMs includes data from two Tyson Foods CAFOs submitted by company-funded researchers and validated by the EPA, as well as other data provided by respondents to a “Call for Information” by the EPA.

Prior to the start of the National Air Emissions Monitoring Study, Tyson had already dedicated $1 million to Iowa State University researchers for a study of ammonia emissions. As part of the Air Compliance Agreement, the team studying the two Tyson facilities expanded the monitoring to encompass all of the chemicals included in the NAEMS and to meet the EPA’s quality assurance criteria.

Atkinson, the spokesperson for Smithfield, said the EEMs would be “useful” but noted that the pork industry has adapted since the NAEMS.

“Much has changed over this time period that has likely impacted the base data used to develop the EEMs,” Atkinson said. “For instance, feed conversion and overall efficiency have improved industrywide, along with a reduction in the amount of crude protein fed. Both have had the effect of reducing emissions.”

The EPA stands by the validity of the data.

“The EPA is comfortable the data are sufficient to develop an emission estimation method for the animal operations monitored by NAEMS,” the agency said in its response to questions from Investigate Midwest. “EPA is open to discussing options for future monitoring and data collection projects to both expand the amount and type of data available for these operations and how to expand to other animal operation types (e.g., cage-free egg layers) as the industry continues to change.”

Key reasons for delay

The EPA published the first draft EEMs in 2012.

But the revision process stalled after a panel of the EPA’s Science Advisory Board reviewed the drafts and took issue with aspects of the formulas.

The panel sent a letter to the EPA in 2013 outlining issues with the drafts, particularly with the data that formed the basis of the formulas.

“The EPA has developed statistical models based on combined data sets and predictor variables which have limited the ability of the models to predict emissions beyond the small number of farms in the dataset,” the panel wrote.

“While basing the EEMs on data from a small number of farms does not necessarily limit the applicability of the EEMs to national populations,” the 2012 drafts should not be applied to all CAFOs, the panel said.

The panel’s final report includes several recommendations for the drafts, many of which involve clearly stating the limitations of the NAEMS data for users.

The Science Advisory Board panel strongly recommended that the EPA use a “process-based” model for the EEMs. A process-based model would require more data than the agency had access to at the time, and would be more time-consuming to produce, but would more accurately represent the wide range of factors that contribute to emissions at CAFOs around the country, the panel wrote.

Upon receiving the Science Advisory Board’s recommendations, the EEM development ground to a halt. The EPA stopped dedicating resources to the effort and key staff retired, according to the 2017 EPA Office of Inspector General report investigating the delays.

“EPA has made strategic hires to bring in talent with agricultural air expertise to work specifically on this project,” a spokesperson for the agency said in February.

The National Resource Council and the GAO both also recommended the agency use a process-based, rather than a statistical approach. Food and Water Watch attorneys argued that a process-based approach would be easier to implement for farmers.

The EPA’s current draft EEMs do not use a process-based approach.

“The amount of input data that you need to run these models is mind boggling,” said Heinzen, the legal director for Food and Water Watch. “To think that every animal feeding operation owner and operator across the country who needs to comply with the agreement, following the publication of these, is going to be able to do that successfully is ridiculous.”

The EPA told Investigate Midwest it will create a tool to assist CAFO owners and operators with inputting the required data, such as weather conditions.

Aneja, who participated in the Science Advisory Board review of the initial drafts, took issue with the funding of the study and the lack of involvement of scientists and university departments from disciplines outside of agriculture.

“The fact of the matter is, if the study had included a diverse background of scientists to help advise in the design of the study, the nation would have benefited enormously,” Aneja said. “That did not happen.”

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Madison McVan
Madison McVan

Madison McVan is a Report for America corps member who covers economic mobility for Minnesota Reformer. She previously covered agriculture for Investigate Midwest after graduating from the University of Missouri in 2020 with degrees in Journalism and Latin American studies.