Posted on March 12, 2009 by Brian Rosenthal
Has the EPA gone far enough to overcome the successful Waterkeeper Alliancechallenge to its CAFO Rule?
In 2005, the 2nd Circuit Court of Appeals held EPA’s 2003 CAFO Rule exceeded its authority. The challenged rule required certain concentrated animal feeding operators to apply for an NPDES water permit or prove none was needed. The court held that having only a potential to discharge was not enough to require a permit. In 2008, the EPA revised its CAFO Rule, announced on November 20, 2008 at 73 Fed. Reg. 70,418 as “Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines for Concentrated Animal Feeding Operations in Response to the Waterkeeper Decision”-did it do enough to survive a challenge?
Now, only parties that discharge or propose to discharge must apply for an NPDES permit. In addition, a voluntary option is included for unpermitted CAFO’s to self certify that they do not meet the permitting standard. Agricultural stormwater continues to be exempt if litter is applied in compliance with a nutrient management plan. The states are just beginning to address how to implement the CAFO Rule.
One head’s up is, a CAFO that proposes to discharge must apply for a permit as soon as it proposes to discharge. If it does not, it could have an unpermitted discharge and also be in violation of another requirement to seek permit coverage at the proposal date. In other words, an unpermitted discharge could result in two violations.
A proposal to discharge is based on either design, construction, operation or maintenance such that a discharge will occur. The certification procedure is now self-implementing with a certification statement being submitted by the farmer or operator. It is not subject to public comment or agency review. Obtaining a no discharge certification shifts the burden of proof to the agency on whether a proposal to discharge that should have been permitted occurred. In other words, if a party does not properly certify and has a discharge, it has the burden of proving that it did not propose to discharge in any enforcement action, which could lead to a double violation along with the unpermitted discharge.
The EPA as part of the CAFO Rule has committed to work with the states and various states have begun sessions regarding the CAFO Rule and their state programs. Farmers and operators, however, fear unintended recordkeeping violations and EPA inspections upon registration. Of course, to the extent they fall within the Rule, farmers or operators must apply.
Stay tuned for additional implementation issues and enforceability questions as the CAFO Rule becomes subjected to further scrutiny, in the consolidated challenge to it pending in the Fifth Circuit Court of Appeals.