Arizona Residents Challenge Local, National Regulations On Industrial Farm Emissions

By Casey Kuhn
Published: Friday, December 22, 2017 - 11:06am
Updated: Friday, December 22, 2017 - 2:55pm

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(Photo by Casey Kuhn - KJZZ)
A street view of Hickman's Egg Farm in Tonopah.

In a darkened room in downtown Phoenix, the glow of a PowerPoint presentation lights up the faces of a dozen Tonopah residents who are grilling the county air quality director.

"No one knew what they were going to put in," one resident said.

"Right," said Phil McNeely, Maricopa County Air Quality Department director.

"It's mind-boggling," the resident continued, while others chime in at intervals about the need for more regulations.

This public hearing is about wonky rule changes at the county level.

But what these these residents really came to talk about was the Tonopah egg facility they live next to. And to them, even changing one word feels like a threat to their country living that’s already been affected by the foul ammonia stench coming from Hickman’s farms.

Dan Mack came to the hearing and said it’s a fight he’s not willing to give up.

(Photo by Casey Kuhn - KJZZ)
The rural home where Dan Mack and his wife live in Tonopah.

“In our opinion, [the county] is not willing to do anything substantial and make any real headway in protecting the community,” he said.

Mack lives upwind of the industrial animal farm. But, he said just because he doesn't constantly smell the acrid odor of ammonia, it still affects his lifestyle.

"Sometimes we feel guilty, that we don't have to smell much unless we go to the post office," he said.

He and his wife moved to Tonopah from California several years ago to retire, after Dan got in an accident and couldn't work. The rural desert made sense to them because it was close to his wife's family, and it fit their budget. 

He gives me a tour of his home, where his wife has built up a privacy fence made of upcycled wine bottles and reclaimed wood. It's a clean and smell-free home, unlike parts of the road leading up to the Hickman's facility that is littered with feathers and smells stronger the closer one is to it. 

A Battle Between Neighbors

The struggle started in 2014, when Hickman's built a large egg-laying facility in the middle of Tonopah, a tiny town far west of Phoenix where four million chickens lay eggs, and their waste, in huge, open-air barns. The manure is also dried and transported.

Local families and businesses have tried to stop Hickman's from polluting the air around their homes since the beginning.

“A group of people went to the Hickman's right away once they found out and said ‘Hey there’s residents here – move,'" Mack said. "'There’s other properties away from people.’”

He and a local group have been vocal about getting Hickman's to either mitigate their odor emissions or leave. After going to the county air quality department time and time again, they felt like it was time to turn to the courts.

In their lawsuit, Mack along with dozens of others claim Hickman's is a public and private nuisance because of their emissions.

They say that overwhelming stench of ammonia is stopping them from enjoying their homes.

Hickman's, in return, filed a request for a judge to say they are operating legally, putting a stop to this and other lawsuits. This declaratory relief argues Hickman's is not a nuisance and is using best emission practices.

Hickman's declined an interview with KJZZ. The company provided a statement saying it "is receiving attention because a small group of people, who chose to live on rural land zoned for agricultural use, have decided to file lawsuits against the company."

Through the proceedings, it reads, Hickman's will prove it is a "good neighbor and faithful to our legal, zoning and environmental responsibilities."

What they could not claim, however, was a "right to farm," which is protected under Arizona statute.

Some farms are protected under Right-to-Farm laws, which would nullify the locals’ original nuisance lawsuit, if that farm had been there before the residents. But that’s not true here, since the farm came in around 2014.

Attorney Rusty Rumley is with the National Agricultural Law Center, a research-based group.

“Under Right-to-Farm, it’s a defense, so you can’t use it to sue anybody," Rumley said. "But what they may be asking for [is] a declaratory relief saying, ‘judge, we would like for you to rule as a matter of law that our farming operation is not a nuisance.'”

Why Aren't Factory Farms Regulated By The EPA?

The EPA is in a process to regulate emissions from Concentrated Animal Feeding Operations, or CAFOs. Typically, that means swine or livestock farms that produce manure lagoons and other waste products. There are also reports on how egg-laying facilites, like Hickman's, could be regulated under the Clean Air Act.

Under a 2005 voluntary reporting program that shields ag programs who offer emissions testing, the EPA was supposed to create new, updated guidelines on how factory farms should be regulated. 

Hickman's delined to say whether they are part of that program, and the EPA, at time of reporting, did not say either. 

The Office of Inspector General earlier this year issued a scathing report saying the CAFO regulations are years overdue.

The report says ammonia, produced by the decomposition of animal manure, can cause severe cough and chronic lung disease. 

The report continues saying the air emissions study data through those years showed that egg-layer CAFOs, like Hickman's, often exceeded reporting thresholds for ammonia, which would be 100 pounds per day. 

Documents from Hickman's show they produced well beyond that threshold. At the Tonopah facility, Hickman's reported to national authorities they emit nearly 1,600 pounds of ammonia per day.

Ultimately, the OIG report shows there is not enough data to adequately report and regulate emissions from CAFOs. It did instruct the EPA to create them in a timely manner.

What Can Local Environment Protectors Do?

Locally, the Arlington and Tonopah farms are regulated by the state and the county.

“We’ve had a really good relationship with Hickman in general because we do regulate the Arlington facility,” said Timothy Franquist, air quality director at Arizona Department of Environmental Quality.

He says the farm follows industry best practices, called AgBMPs, for mitigating dust and emissions.  AgBMPs are industry guidelines for new farmers to follow to make sure they don't create too much dust in the air as they farm.

AgBMPs are under state control, which is in the areas that are not meeting the national requirement for air quality standards. That would include the Phoenix metro area. But, because Tonopah is so far west, the state ceded jurisdiction over the Tonopah plant, which will now have to comply with Maricopa County's dust control plans.

“It’s been a great opportunity to work with Maricopa County and Hickman in handing off the Tonopah facility in such a way that it didn’t shock the business operations of Hickman but at the same time brought a higher sense of environmental protection to the community,” Franquist said.

(Photo by Casey Kuhn - KJZZ)
An STOPP sign outside of a residence in Tonopah.

Tonopah now faces a stricter set of rules on how their trucks kick up dust.

The rank ammonia smell, though, is something the locals continue to fight, and that’s what they’re hoping to get through the court case.

Danielle Diamond with environmental advocacy group Socially Responsible Agricultural Project says Hickman’s counter claim is a strong-arm move.

“We see these types of tactics all the time, and a lot of times they’re intimidation tactics against the people that are trying to stand up for their rights,” Diamond said.

The company hired Michael Manning, a lawyer who won a lawsuit against former Maricopa County Sheriff Joe Arpaio to represent their side in court. 

Diamond said while Hickman's may not have that Right-to-Farm defense, they are asking for similar protections from the judge in a declaratory relief.

Dan Mack in Tonopah says that wouldn't be fair for the locals who hope to finally see relief through the legal system.

“We have the right so see that, even if we’re going to lose that court case, we still get our day in court," Mack said. "We still get to move forward, they can’t just ask for it to be tossed aside just because they want to.”

With no national rules coming soon, and an expensive court battle, Tonopah locals will continue to contend with Hickman's.

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