Federal Rulemaking Petitions

EPA’s final rule addressing revised National Pollution Discharge Elimination System (“NPDES”) and Effluent Limitation Guidelines (“ELGs”) for Concentrated Animal Feeding Operations (“CAFOs”) 

On November 20, 2008, EPA published the final rule addressing its revised position on the National Pollution Discharge Elimination System (“NPDES”) and Effluent Limitation Guidelines (“ELGs”) for Concentrated Animal Feeding Operations (“CAFOs”) (“2008 CAFO Rule”), in the Federal Register at 73 Fed. Reg. 70417.  This rule addresses only the provisions of the 2003 CAFO Rule stricken by the 2005 case Waterkeeper Alliance v. EPA, 399 F.3d 486 (2d Cir. 2005).  The provisions of the 2003 CAFO Rule not addressed by that case, or in this rule, remain intact.  

The 2008 CAFO Rule addresses the following seven issues: the duty to apply for a permit, the agricultural stormwater exemption, nutrient management plans, compliance dates, water quality-based effluent limitations, new source performance standards for subpart D facilities, and BCT limitations for fecal coliform.  Each of these issues is summarized below.

• Duty to Apply for a Permit

• EPA modifies its original duty to apply standard by specifying that an owner or operator of a CAFO need only apply for an NPDES permit if it discharges or proposes to discharge.  The standard to determine whether a CAFO proposes to discharge requires that the CAFO operator review its operations to objectively determine whether it is “designed, constructed, operated or maintained such that a discharge would occur.”  Therefore, “this final rule calls for a case-by-case evaluation by the CAFO owner or operator as to whether the CAFO discharges or proposes to discharge from its production area or land application area based on actual design, construction, operation, and maintenance.”  The rule does not supply a definitive set of facts that would require the facility to apply for a permit; rather, it suggests a number of alternatives for the operator to consider when making this determination. 
• A CAFO that discharges without a permit is in violation of the CWA s. 301(a) prohibition against discharging without a permit.  The CAFO also must show that it did not propose to discharge prior to the discharge.  If it cannot show that, it will also be found to be in violation of the s.122.23(d)(1) duty to apply standard.   
• For CAFOs that objectively decided that they do not discharge or propose to discharge, the rule creates an optional certification program through which the unpermitted CAFO can certify to the permitting authority that it does not discharge or propose to discharge.  Under this program, once a CAFO signs and submits a certification statement to the Director that it does not discharge or propose to discharge, it becomes certified.  The discharge certification is not subject to review by the permitting authority to become effective, and there is no future requirements for permitting authority review in order for certification to be valid.  Further, certification is not required to be made available to the public. 
• Even with certification, a CAFO that discharges without a permit is in violation of the CWA s. 301(a) prohibition against discharging without a permit.  However, the certified CAFO is presumed not to be in violation of the duty to apply standard. 

• The Agricultural Stormwater Exemption

• Instead of fully re-opening its findings in the 2003 Rule on the agricultural stormwater exemption, EPA clarifies its position regarding the agricultural stormwater exemption by stating that the agricultural stormwater exemption applied not only to exempt discharges from permitted CAFO, but also to exempt discharges from unpermitted CAFOs.   An exempt discharge is a precipitation-related discharge from a land application area if the waste was applied to the area in accordance with nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater as specified in s. 122.42(e)(1(vi)-(ix).

• Nutrient Management Plans and Public Review

• Under this rule, EPA requires that all CAFOs seeking permit coverage (both general and individual) submit their full site-specific nutrient management plans (“NMPs”) when applying for permit coverage.  With a general permit, the permitting authorities then review these applications, along with the NMP, to ensure that each application meets the requirements of the regulations.  If sufficient, the permitting authority must notify the public of its intent to grant coverage for a facility under the general permit and make available for public review and comment the CAFO’s Notice of Intent for Coverage (NOI), including its NMP, and the draft terms of the NMP to be incorporated into the permit.  The public can also request a hearing on this information before the CAFO is authorized to discharge under the general permit. 
• If, after the public notice period, the conclusion of any hearings, and any response to significant public comments, the permitting authority decides to authorize discharge under the permit, the permitting authority must notify the CAFO and inform the public.  Notice must also be provided to other affected States, as required by the CWA. 
• The requirements of the NMP document, as established in the 2003 CAFO Rule and as provided in 40 CFR 122.42(e) and, for Large CAFOs subject to subparts C and D, 40 CFR 412.4(c), as applicable, remain unchanged.

• Compliance Dates

• Following the November 20 issuance of this rule, authorized States have up to one year to revise their NPDES regulations to adopt the requirements of this rule.  If statutory changes are needed, States are given two years. 
• States are not required to adopt the provisions of the no discharge certification. 
• However, the rule does not revise the February 27, 2008 compliance/application dates for existing facilities, defined as CAFOs prior to the 2003 CAFO rule, or for newly constructed facilities not subject to new source performance standards or that discharge or propose to discharge.   

• Water Quality-Based Effluent Limitations (“WQBELs”)

• EPA clarifies that WQBELs may be required in permits with respect to production area discharges and discharges from land application areas except agricultural stormwater discharges.  Therefore, if technology-based limitations are insufficient to meet applicable water quality standards, more stringent WQBELs will be required.  However, EPA does not promulgate any WQBELs through this rule; it merely recognizes States ability to do so. 
• New Source Performance Standards for Subpart D Facilities (“NSPS”)
• This rule removes the provision in the previous rule that allowed CAFOs to use a 100-year, 24-hour containment structure to fulfill the no discharge requirement for new sources of swine, poultry and veal operations.  It finds that this standard is not sufficient to show no discharge from that facility.  Instead, EPA authorizes permit writers to establish no discharge best management practice (“BMP”) effluent limitations when a facility demonstrates that it will be designed, constructed, operated and maintain an open containment system that would comply with the no discharge requirement.  
• Land application requirement for new sources remain unchanged.

• BCT Limitations for Fecal Coliform   

• EPA found, upon review of the record, that the best conventional technology (“BCT”) limitations established for the 2003 rule were appropriate, and, therefore, that they continue to apply to fecal coliform through this rule.  This assessment was based on EPA’s conclusion that there are no available and economically achievable technologies that are cost reasonable and that would provide greater fecal coliform removal than the best practicable control technology (“BPT”) technology.
• The rule establishes non-numeric effluent limitations based on BPT and the best available technology economically achievable (“BAT”) as well as BCT limitations.  These limits prohibit the discharge of manure, litter or process wastewater into waters of the U.S. from production areas except in limited circumstances.  Further, land application must take place in accordance with BMPs.  EPA concluded that there were no available BCT technologies on which to base limits for conventional pollutants that were more stringent than the BPT limitations, and therefore established BCT requirements equal to BPT limitations.