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July 31, 2012
CAFO requirement eliminated

In a final rule, the requirement that owners/operators of concentrated animal feeding operations (CAFOs) that propose to discharge obtain national pollutant discharge elimination system (NPDES) permits has been formally removed from the Code of Federal Regulations (CFR) by the EPA. The action also strips the CFR of a related voluntary certification provision.

Objective assessment

The requirement that CAFOs proposing to discharge obtain an NPDES permit was one of the more controversial provisions of EPA’s November 2008 amendments to the CAFO permitting requirements. In that action, the EPA stated that any CAFO that discharges or proposes to discharge is required to seek permit coverage. The EPA clarified that a CAFO proposes to discharge based on an “objective assessment,” specifically, if it is designed, constructed, operated, or maintained such that a discharge will occur.

Furthermore, the EPA provided that a CAFO owner/operator who can provide an objective assessment that the CAFO is designed, constructed, operated, and maintained in a manner such that the CAFO will not discharge can apply for a voluntary certification indicating that the CAFO would not be in violation if it does not apply for a permit even if a discharge does occur.

Agriculture vs. the EPA

The propose-to-discharge provision was challenged by many agricultural organizations. In a March 2011 opinion in National Pork Producers Council v. EPA, the U.S. Court of Appeals for the 5th Circuit built on several earlier judicial rulings, all of which indicated that under the Clean Water Act, a violation cannot occur unless there is a discharge of a pollutant to a water of the United States. “Accordingly, the EPA’s authority is limited to the regulation of CAFOs that discharge,” stated the 5th Circuit. “Any attempt to do otherwise exceeds the EPA’s statutory authority.” The court therefore vacated the 2011 revision that created permitting requirements for CAFOs that, according to EPA’s definition, propose to discharge.

Removing the requirement that CAFOs apply for permits if they propose to discharge rendered the option to certify unnecessary and, therefore, the EPA has also eliminated it.

No discretion

The current action also deletes timing provisions related to when CAFO owners/operators must seek coverage under a NPDES permit. Those provisions extended the time by which facilities newly required to obtain NPDES permits must apply for a permit. The date-specific deadlines in those sections have passed. The revision clarifies that all CAFOs must have a permit at the time they discharge.

Finally, the EPA issued the current final rule without a prior proposal and therefore without receiving public comments. According to the EPA, the court’s vacatur eliminated the Agency’s discretion in the matter. “Providing an opportunity for notice and comment is therefore unnecessary and would not serve any public interest,” says the EPA.

EPA’s final rule in response to the 5th Circuit 2011 opinion was published in the July 30, 2012, FR.

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