Friday, October 21, 2011

EPA Proposes Options For NPDES CAFO Reporting Rule

Oct 21: U.S. EPA has issued a proposed rule options [76 FR 65431-65458] regarding National Pollutant Discharge Elimination System (NPDES) permits and the Reporting Rule for Concentrated Animal Feeding Operation (CAFO). EPA co-proposes two options for obtaining basic information from CAFOs to support EPA in meeting its water quality protection responsibilities under the Clean Water Act (CWA). EPA indicates that the purpose of the co-proposal is to improve and restore water quality by collecting facility-specific information that would improve EPA's ability to effectively implement the NPDES program and to ensure that CAFOs are complying with the requirements of the CWA.
    Comments on the proposed action must be received on or before December 20, 2011. EPA plans to hold two Webinars in November, 2011 to provide an overview of, and answer questions about, the proposed rule requirements. The webcasts are scheduled for November 9 and 17, 2011, from 1:00-2:30 PM Eastern time. The webcasts are intended open for registration at this time (see link below).
    EPA co-proposes two options by which the Agency may achieve today's rule objectives: Option 1 would apply to all CAFOs; Option 2 would identify focus watersheds where CAFO discharges may be causing water quality concerns and EPA could use its section 308 authority to obtain information from CAFOs in these areas. EPA indicates that it recognizes that there may be other ways to achieve this objective, and the Agency solicits comment on alternative approaches to meet the objectives of the proposed rule. Such alternative approaches may require rulemaking. EPA would consider any such suggested alternative approaches in developing the final rule. EPA describes three such alternative approaches and seeks public comment on those approaches.
    EPA is proposing the rues in response to a settlement agreement with environmental groups that commits EPA to propose, by October 14, 2011, a rule under section 308 of the CWA, to require all owners or operators of CAFOs, whether or not they have NPDES permits, to submit certain information to EPA. EPA committed to take final action on the rule by July 13, 2012.
    In 2008, EPA issued revised regulations in response to the Waterkeeper decision [i.e. February 2005, U.S. Court of Appeals for the Second Circuit decision in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2d Cir. 2005)] Among other changes, the revised regulations required only those CAFOs that discharge or propose to discharge to obtain an NPDES permit. Subsequently, environmental groups and industry filed petitions for review of the 2008 rule, which were consolidated in the U.S. Court of Appeals for the Fifth Circuit. EPA signed a settlement agreement with the environmental petitioners in which EPA committed to propose a rule, pursuant to CWA section 308, that would require CAFOs to provide certain information to EPA. The settlement agreement provides the context and timeline for this proposed rulemaking.
    On March 15, 2011, the Fifth Circuit Court of Appeals vacated the requirement in EPA's 2008 CAFO rule that CAFOs that "propose" to discharge obtain NPDES permits and held that CAFOs are not liable under the CWA for failing to apply for NPDES permits. Nat'l Pork Producers Council (NPPC) v. EPA, 635 F.3d 738 (5th Cir. 2011). The Fifth Circuit held that there must be an "actual discharge to trigger the CWA requirement to obtain a permit." [See WIMS 3/16/11].
    Access the FR announcement for complete details and commenting instructions (click here). Access registration details for the webinars (click here). Access a fact sheet on the proposal (click here). Access a Q&A document (click here). Access EPA's CAFO Rulemaking website for complete background (click here). Access EPA's docket for this action with additional background and to review and submit comments (click here). [#Water, #Agriculture/CAFO]