EPA Taking Comments on Proposed CAFO Wastewater Discharge Rule
By Meline MacCurdyEPA is taking comments on a proposed rule allowing owners and operators of concentrated animal feeding operations (“CAFOs”) to certify that they have no wastewater discharges and are thus exempt from permitting requirements under § 402 of the Clean Water Act (“CWA”).[1] The comment deadline is April 7, 2008. The proposed rule would allow qualifying CAFOs to operate without a wastewater permit. However, it would not shield CAFOs from liability if an accidental discharge occurs at the facility. The proposal has drawn criticism from both the regulated community and environmental groups.
Background
Under CWA § 301, it is unlawful to discharge pollutants from a point source into waters of the United States without a valid permit.[2] The National Pollutant Discharge Elimination System (“NPDES”) permit program established by § 402 of the CWA applies to discharges of pollutants from point sources.[3] Although EPA has delegated to the vast majority of states the implementation of the NPDES program, the agency retains enforcement oversight and the authority to promulgate rules of national applicability. The CWA expressly includes CAFOs in the definition of a “point source,”[4] and EPA has promulgated detailed rules that define when a facility is a CAFO.[5]
In 2003, EPA promulgated a “duty to apply” rule that required all CAFOs to apply for NPDES permits unless EPA determined that a particular CAFO had no potential to discharge wastewater.[6] EPA reasoned that preemptively requiring permits was warranted based on the presumption that most CAFOs have at least a potential to discharge.[7] Industry groups successfully challenged EPA’s “duty to apply” rule in Waterkeeper Alliance v. EPA,[8] in which the Second Circuit Court of Appeals held that the CWA does not authorize EPA to require CAFOs to obtain NPDES permits unless there is an actual, rather than potential discharge.[9]
In a 2006 proposed rule issued in response to the Waterkeeper decision, EPA amended the duty to apply rule by requiring only CAFOs that “discharge or propose to discharge” wastewater to apply for NPDES permits.[10] Consistent with the NPDES program for other point sources, this rule leaves CAFO operators with the responsibility to determine whether their operations require an NPDES permit.[11] EPA has not finalized this rule, which is currently under White House review.
The Proposed Certification
On March 7, 2008, EPA published a supplemental proposed rule to respond to hundreds of comments that asked EPA to clarify the circumstances when an NPDES permit is necessary.[12] This voluntary certification provides a structured, objective set of criteria for owners and operators of CAFOs to follow as they determine whether to apply for a permit. However, it does not change the duty for CAFOs to apply for NPDES permits if they discharge or propose to discharge.
The proposed rule includes two eligibility criteria that a CAFO must meet to become zero discharge certified.[13] First, the CAFO owner or operator must objectively evaluate the production area design, construction, operation, and maintenance to show that the production area will not discharge.[14] Given the differences in production area designs, the method of evaluation will depend on the type of containment system used in the operation.[15] The second eligibility criterion requires a CAFO owner or operator to develop, implement, and maintain a nutrient management plan (“NMP”) that complies with specified regulatory requirements.[16] To retain certification, a CAFO owner or operator would have to revise its NMP if any of the design specifications, practices, or other NMP provisions change over time.[17]
The primary benefit of obtaining a certification is that it would insulate a CAFO from liability under 40 C.F.R. § 122.23(d) and § 308 of the CWA for failing to apply for a permit prior to a discharge. The proposal states that this protection is warranted, because “[c]ertification would require a CAFO owner or operator to undertake and document a rigorous analysis of the operation’s structure and design, and to be committed to operation and maintenance protocols designed to ensure no discharge.”[18] Certification would not, however, exclude CAFOs from all liability in the event that a discharge were to occur. The CAFO owner or operator would still face potential enforcement under CWA § 301, which imposes injunctive relief and penalties for unpermitted discharges.[19] In addition, citizens could seek to hold a CAFO with an unpermitted discharge liable under the citizen suit provision in § 505 of the CWA.[20] In other words, under the proposed certification program, liability under the CWA could attach to a CAFO for an unpermitted discharge, but not for the act of failing to obtain a permit.
Of potential concern to environmental groups is the voluntary submission procedure for EPA’s proposed certification. The proposal does not require a permitting agency to review the certification to assess its veracity, nor does it require submission of the NMP, which the CAFO operator must maintain on-site.[21] Additionally, the proposal does not provide an opportunity for public comment on the certification or the supporting documents, including the NMP, although the permitting authority would have to make that information available upon request.[22] The permitting authority could still inspect a certified CAFO to confirm compliance with the CWA, and the CAFO owner or operator could rely on the certification and all supporting documents to show that they are not required to have an NPDES permit.[23] If any documents were not retained onsite, the certification would be invalid, and the CAFO operator would be subject to enforcement and exposed to a citizen suit.
Industry groups have their own separate set of concerns with the proposed rule. Some industry groups commented that the 2006 rule did not remove the “duty to apply” language adequately after the Waterkeeper decision, because it still requires permits for potential, as opposed to actual, discharges.[24] The proposed rule reiterates that a CAFO may still face liability for failing to apply for a permit if, after a discharge, EPA determines that “the CAFO could have reasonably foreseen that the discharge would occur and did not seek permit coverage prior to discharge.”[25] Thus, the proposed rule seeks to ensure that CAFOs that are likely to discharge will obtain NPDES permits, but does not quantify how probable an unplanned discharge must be to necessitate a permit. EPA has stated that it may determine whether accidental discharges invalidate a certification on a case-by-case basis, and is requesting comments on this issue.[26]
Conclusion
In theory, the proposed rule may provide a means whereby regulated entities can undertake a reasoned analysis of whether they need to apply for an NPDES permit. If conducted correctly, the certification will also add some predictability in the event of an inspection, by providing CAFOs with evidence that they do not need an NPDES permit. Additionally, undertaking this analysis up front could reduce the potential risk of experiencing an unpermitted discharge. However, certification does not foreclose the possibility of liability associated with a discharge, which may address some environmental group criticisms.
The comment period extends until April 7, 2008, and EPA hopes to publish a final rule by mid-summer. The regulated community should assess whether the prospective benefits of submitting a certification are worth the administrative burdens of conducting the analyses necessary to meet the eligibility criteria.
For more information on the EPA’s proposed rule, please contact Meline MacCurdy or any member of Marten Law Group’s Water Quality practice group.
[1] 73 Fed. Reg. 12321 (Mar. 7, 2008). The proposal also includes three potential approaches to nutrient management plans that will help permitting authorities and CAFOs to determine application rates of manure, litter, and wastewater for a range of facilities. See id. at 12328-12336. For a copy of the supplemental proposed rule and information about the background to the rule, see Environmental Protection Agency, National Pollutant Discharge Elimination System, Animal Feeding Operations.
[2] 33 U.S.C. § 1311(a).
[3] Id. § 1342.
[4] Id. § 1362(14); 40 C.F.R. § 122.23.
[5] Before a facility can be defined as a CAFO it must meet the definition of an “AFO.” 40 C.F.R. § 122.23. An AFO is a “lot or facility” where animals “have been, are or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12 month period and crops, vegetation, forage growth, or post harvest residues are not sustained in the normal growing season over any portion of the lots or facility. Id. For an AFO to be a CAFO, it must confine more than a threshold number of particular types of animals. Id. § 122.23(b)(2). Designation as a “Large CAFO” depends exclusively on the number of animals. Id. § 122.23(b)(4). “Medium CAFOs” confine fewer animals than Large CAFOs and either 1) “Discharge pollutants into waters of the United States through a man-made ditch, flushing system, or other similar man-made device; or 2) discharge pollutants directly into waters of the United States which originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the confined animals.” Id. § 122.23(b)(6). In certain circumstances, any CAFO may also qualify as a “Small CAFO” if an on-site inspection indicates that a facility “is a significant contributor of pollutants to waters of the United States.” Id. § 122.23(c).
[6] 68 Fed.Reg. 7176 (Feb. 12, 2003).
[7] See 73 Fed.Reg. 12321, 12324 (March 7, 2008).
[8] 399 F.3d 486 (2d Cir. 2005).
[9] Id. at 504-06.
[10] 71 Fed. Reg. 37744 (June 30, 2006). The Waterkeeper decision did not impact the regulatory definitions of AFOs and CAFOs, which are still in place. Because the regulatory definitions of Small and Medium CAFOs include actual discharges, those facilities must always operate under an NPDES permit. Consequently, the remaining uncertainty involves whether Large CAFOs must obtain NPDES permits. See id. at 37748.
[11] Id. at 37749.
[12] 73 Fed. Reg. at 12324. The supplemental proposed rule does not re-open the comment period on any elements of the 2006 Proposed Rule that are not identified.
[13] In addition to these eligibility criteria, certification would also require submission of the following five elements: 1) The CAFO owner or operator’s name, address, and phone number; 2) information regarding the CAFO’s location, including longitude and latitude; 3) a description of the manner in which the CAFO satisfies the eligibility requirements; 4) a certification statement; and 5) an official signature, which would be similar in design and effect to the “no exposure” exclusion for industrial storm water. Id. at 12326.
[14] Id. at 12325.
[15] Id.
[16] Id.
[17] Id. at 12326.
[18] Id. at 12327.
[19] Id.
[20] 33 U.S.C. § 1365.
[21] EPA has requested comments on the submission requirements. Environmental Protection Agency, National Pollutant Discharge Elimination System, Supplemental Proposal to the June Proposed Rule.
[22] 73 Fed. Reg.at 12324.
[23] Id. at 12325.
[24] Id. at 12324. In Waterkeeper, the Second Circuit stated that “the Clean Water Act, on its face, prevents the EPA from imposing upon CAFOs, the obligation to seek an NPDES permit or otherwise demonstrate that they have no potential to discharge.” Waterkeeper Alliance v. EPA, 399 F.3d 486, 506 (2d Cir. 2005).
[25] 73 Fed. Reg. at 12327.
[26] EPA addressed this issue and other areas of uncertainty in a brief webcast, which is available on EPA’s website. Environmental Protection Agency, National Pollutant Discharge Elimination System, Supplemental Proposal to the June Proposed Rule.
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