Thursday, March 17, 2011

Court Ruling Limits Requirement For CAFO To Apply For NPDES Permit

In a case involving the requirement for Concentrated Animal Feeding Operations (CAFO) to obtain a National Pollutant Discharge Elimination System (NPDES) permit, the U.S. Fifth Circuit Court of Appeals has issued an opinion that there is no “duty to apply” for a NPDES permit in the Clean Water Act. Only CAFOs that have to obtain permits are those that are actually discharging pollutants to waters of the United States.

EPA revised the CAFO Rules in 2003, and required all CAFOs with the “potential to discharge” to obtain a NPDES permit. The industry challenged that requirement and the U.S. Court of Appeals for the Second Circuit agreed that the Clean Water Act did not authorize EPA to regulate facilities that do not actually discharge. In 2008, EPA issued a revised rule, which required all CAFOs that discharge or “propose to discharge” to obtain a NPDES permit. The current ruling relates the 2008 revised CAFO rules.

The 2008 CAFO, a facility operator failing to apply and obtain a permit could be liable for the actual discharge and also for its failure to apply for a permit. The court determined that this provision beyond the scope of EPA’s authority, because the Clean Water Act lists specific violations a facility can be liable for, which does not include failure to apply for a NPDES permit. The Court rejected a challenge to the 2008 CAFO Rule concerning the inclusion of Nutrient Management Plans as an enforceable provision and regulation of land application areas in a CAFO NPDES permit.

The Court ruling applies to EPA CAFO rules only; individual States may have additional requirements which could require applications from CAFOs.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address water quality standards, wastewater permitting and assessing potential impacts of chemicals in the aquatic environment.

Caltha LLP Aquatic Toxicology / WQ Standards Services Website