Transcript Final CAFO Rule - Texas A&M University

CAFO Rule Update
and
Region 4 CAFO NPDES Program Implementation
by
Wayne J. Aronson
Chief, PGTA Branch
Ag Meeting
December 06, 2005
CAFO Lawsuit
“Waterkeeper Alliance, et al. v. EPA” 2003

Litigants
 Environmental Petitioners: Waterkeeper
Alliance, American Littoral Society,
NRDC, Sierra Club


Industry Petitioners: American Farm
Bureau Federation, National Pork
Producers Council, National Chicken
Council
Key Issues
 Duty to Apply
 Land Application
 Nutrient Management Plans
2
Court Decision

February 28, 2005 -- 2nd Circuit Court of
Appeals (New York) Decision –
Consolidated Appeals

This decision applies nationally
3
Court Decision (cont.)

Court Vacated

Duty to apply based on “potential to
discharge”

Issuance of permits without public
review of Nutrient Management Plans,
and incorporation of Nutrient
Management Plan requirements into the
permit
4
Court Decision (cont.)

Court remanded for further explanation:

New Source Performance Standards
(NSPS) 100-year storm standard for veal,
pork & poultry (and whole farm
alternative standard for NSPS)
5
Key Issues for EPA
Duty to apply:

The Court said:
– The requirement that all CAFOs with a
potential to discharge should be
vacated

EPA action:
– Replace with requiring CAFOs that
either have a discharge or propose to
discharge must have a permit
6
Key Issues for EPA
Nutrient Management Plans (NMP):

The Court said:


The NMP must be reviewed by the permit
authority and the public, and must be
included in the NPDES permit
EPA action:

The revised rule will include above
requirements

Issues to be resolved include:
–
–
–
How to maintain the integrity of the general permit
process?
The feasibility of using an NMP template to facilitate
the process
Permit modifications related to changes in the NMP
7
Key Issues for EPA

Agricultural Stormwater: Land
Application

Regulation states that if an operator land
applies in accordance with agronomic
practices outlined in 122.42(e)(vi)-(ix),
then a precipitation related discharge is
exempt from NPDES requirements

Clearly, a Nutrient Management Plan will
be necessary to support an operator’s
claim to this exemption
8
Key Issues for EPA

Application dates in the 2003 Rule
remain in effect until EPA promulgates
revisions




February 13, 2006 - for newly defined
CAFOs to apply for permits
(Any new CAFO must apply for permits
180 days prior to commencing operation)
December 31, 2006 - date by which all
existing CAFOs must develop and
implement an Nutrient Management Plan
Three year period since 2003 regulation
was published to prepare for these
requirements
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Key Issues for EPA

However, EPA plans to change these
dates in its revised rule. Issued a Federal
Register Notice – October 31, 2005
This Federal Register Notice extends the
permit application date of February 13, 2006,
and the Nutrient Management Plan due date
of December 31, 2006, to a later date that will
be announced and finalized before
February 13, 2006.
10
Schedule for Rule Revision

Proposed rule published: 1/06

Public comment period: 1/06–3/06

Final rule: Fall 2006
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CAFO Program
Implementation Status



To date, approximately 20 states have final
revised CAFO programs in the nation with
the 2003 rule - many of which include final
general permits. 6 out of 8 states have
revised CAFO programs in Region 4. Five
Region 4 states currently have CAFO general
permits.
Approximately 40% of the 18,900 CAFOs are
currently permitted in the nation. 52% of the
3600 CAFOs are currently permitted in the
Region.
EPA is working with NRCS on strategy to get
Nutrient Management Plans developed on
time and to clarify what portions of a
Compressive Nutrient Management Plan can
be used to comply with the CAFO rule
12
What to do until EPA revises
the 2003 CAFO rule?
The Message:

Most aspects of the 2003 rule were not
affected by the Court’s decision, 2003 rule
remains in effect and should continue to be
implemented

Until EPA revises its rule, States and EPA
Regions should not halt CAFO program
development and implementation but
continue to move forward and incorporate
the terms of the Second Circuit Court
decision, where appropriate
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