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Comments on proposed rules by the
Air
pollutants are regulated by the Idaho Department of
Environmental Quality.
Agricultural operations are not exempt from those
regulations. ISDA's
proposed odor rules must not weaken the regulatory scheme
already in place
or carve out any special exceptions to those rules for
agricultural
operations, many of which are on an industrial scale. In
fact, incorporating
the definition quoted above into ISDA's odor rules along
with numeric
standards could give ISDA some flexibility in dealing with
complaints.
For
example, the rules could provide that validation of an odor
complaint would
be based on either exceeding a numeric standard or producing
odors meeting
the definition above. This approach would account for those
situations where
chemical testing ( i.e. hydrogen sulfide monitoring) is an
inadequate tool
to measure odors which are widely recognized as
unacceptable.
An alternative would be to combine the narrative standard
relating to odors
"in excess of those odors normally associated with
acceptable agricultural
practices in Idaho" with numeric standards. This would allow
the Department
to use its expertise to identify excessive odors and at the
same time give
the public some assurance that objective standards are also
used.
AIR QUALITY ACTION STANDARDS
At least thirty states have set hydrogen sulfide standards
applicable to
agricultural operations. Minnesota's regulations limit the
ambient
concentration of H2S to .05 ppm, 30 minute average, not to
be exceeded twice
per year or .03 ppm, 30 minute average, not to be exceeded
twice per
consecutive five day period. Minnesota's experience with
this standard does
not seem to have proved it too strict. While H2S measurements do not correlate perfectly with
reports of
nuisance odors, there is a reasonable correlation between
the two. An H2S standard comparable to Minnesota's will
give ISDA an
objective measuring tool.
We suggest that the n-Butanol scale method of odor intensity
measurement
also be used to identify problem odors. The combination of
an n-Butanol
scale standard and the H2S standard along with a standard
which considers
the frequency, duration, intensity and character of problem
odors such as
might "unreasonably interfere with the enjoyment of life or
property" or
such as are " in excess of those odors normally associated
with accepted
agricultural practices in Idaho" will give ISDA both an
objective measure and
a flexible measure to deal with problem odors.
Odors exceeding any threshold of the three pronged standard
would be cause
to initiate a notice of violation and should be workable
regardless of the
size of the operation. Large operations should not have a
greater capacity
to cause odor problems for their neighbors just because they
are larger.
LIQUID WASTE SYSTEM - ENGINEERING APPROVAL
The definition of "liquid waste system" in Idaho Code
25-3803 (5) includes
"associated waste collection and conveyance systems" where
water is used as
the primary carrier of manure. It is our view that at any
stage of an
operation or in any component part of an operation where
water is used as
the primary method of cleaning or carrying manure,
engineering review is
required. There is nothing in the text of the statute which
requires ISDA to
look at the whole operation rather than its component parts
when making a
determination of whether the operation is using a "liquid
waste system". If
part of the operation meets the definition, i.e. uses water
for cleaning,
flushing, carrying manure etc. that part of the operation
needs engineering
approval.
ACCEPTED AGRICULTURAL PRACTICES
County ordinances, federal statutes, rules promulgated by
federal agencies
or by Departments of the State of Idaho other than the ISDA
may limit what
ISDA would call an " acceptable agricultural practice".
These limitations
are impossible to list but must be referenced where the term
is defined in
the rules. The common law and statutory law of nuisance in
Idaho as it
applies to agricultural operations should also be considered
when defining
"acceptable agricultural practices". Nuisance operations
should not be
permitted as a result of the odor rules under consideration.
Before listing
agricultural practices as " acceptable" the Department had
better be sure
they are. For instance, some of the practices at livestock
confinement
operations which generate large amounts of dust will have to
be looked at
carefully not only for their potential to produce odors
accompanying dust
but in the context of other air quality regulations such as
those regulating
particulate matter emissions.
In addition, just because a practice has been used for some
time in Idaho or
may be an acceptable " industry standard", does not make it
an "accepted
agricultural practice". Idaho Code 25-3801 does not answer
the question
"acceptable to whom"? As in many states across the country
where there are
concentrated animal feeding operations , Idahoans will not
accept some of
the odors associated with the industrialization of animal
confinement
facilities. For example, chronic septic odors from uncovered
lagoons are not
acceptable and uncovered lagoons which generate these odors
which drift off
site should not be considered acceptable. Unless and until
it can be proved
that they can operate without serious odor ( and other)
impacts uncovered
lagoons within detection distance from a populated area
should considered
unacceptable. Just because affected citizens have not
flooded the courts
with nuisance claims against problem odor generating
operations does not
mean the operations are acceptable.
In this odor rulemaking process Idahoans are counting on the
expertise of
the Department to protect them from operations which might
"unreasonably
interfere with their enjoyment of life or property". It is
not the
traditional role the Department has had of promoting
agriculture. The
Department has to exercise the dual roles of promoter and
protector when it
interprets the phrase "accepted agricultural practice" and
must also keep in
mind the fact that it is not a discreet list of practices
immune to change.
Changes will result not only from agricultural research but
from research in
other fields such as public health. The Department should be
considering not
only the agronomic benefits of practices but also negative
environmental or
human health affects which can reasonably be connected to
odors. Certain
irrigation practices using wastewater, for instance, should
not be
considered "acceptable" if there are known health risks to
the general
public associated with them and they generate unacceptable
odors.
PENALTIES
While the intent of the odor law might be to encourage
compliance and the
Department may see fines as punitive, as a practical matter
fines are a very
effective way of encouraging compliance. Large operators who
become large
"violators" have by definition adversely affected their
neighbors in a
serious way. There should be a serious disincentive to cause
odor problems.
Penalties should be on a scale comparable to the economic
benefits an
operator enjoys while "implementing his odor plan" at
probable great expense
to his neighbors.
The Department must clarify in its rules
how it will
account for violations. Will each day of excessive odor
emissions be counted
as a violation and separately subject to a penalty? At what
point during the
implementation of an odor management plan does the
Department still have
authority to impose penalties? What exactly constitutes a
violation? We
would urge the Department to answer the many questions we
have about the
penalties section of the rules so that violators and the
public they affect
know what to expect.
IDAHO RURAL COUNCIL
Don Cogger |
