Comments on
EPA’s Proposed Rule on the Revised
National Pollutant Discharge Elimination System Permit Regulation
And
Effluent Limitation Guidelines
for
Concentrated Animal Feeding Operations
In Response to
Waterkeeper Decision
71 Fed. Reg. 37744-37787 (June 30, 2006)
EPA Docket ID No. EPA-HQ-OW-2005-0037
August 29, 2006
I. Introduction
The South Dakota Cattlemen’s Association (SDCA) is a grassroots organization representing one thousand beef producers statewide. As a state affiliate of the National Cattlemen’s Beef Association and through our fifteen local affiliates, SDCA is an advocate for cattlemen on issues relevant to the success of their businesses. In addition, SDCA’s nearly one hundred feeder members work through the Cattle Feeder Council (CFC) on issues specific to the cattle feeding industry. Our comments are submitted on behalf of SDCA and the Cattle Feeder Council members.
II. Duty to Apply for a Permit
A. In General
EPA claims in the Preamble that “[a]ny CAFO that discharged or proposed to discharge and failed to obtain an NPDES permit would be in violation of the NPDES regulatory requirement to seek coverage under an NPDES permit. A facility with an actual discharge would also be in violation of the CWA prohibition against discharging without an NPDES permit (33 U.S.C. 1311(a)).” Id. at 37749.
SDCA submits that the EPA once again has overstepped its authority with this requirement. Nowhere in the CWA is there a requirement for anyone to apply for or obtain a NPDES permit. Rather, the CWA authorizes the EPA to issue NPDES permits in order to allow discharges of pollutants. Congress knows how to regulate that which it intends to regulate. Congress has clearly not chosen to do so here. If Congress intended for a person who discharges to get a permit under all circumstances, it would have written the statute to reflect that intention.
It appears that the EPA is trying to convince CAFO owners/operators that if they even have a single past discharge they would be required to apply for a NPDES permit. Nothing in the Waterkeeper decision or in the Clean Water Act supports or requires this position. The occurrence of a past discharge merely signals the potential to discharge in the future, nothing more, nothing less. Particularly where a CAFO owner/operator has taken steps to correct the cause of the past discharge, he is no more likely to discharge in the future than any other well run CAFO, and is not in violation of any law. EPA’s proposal to the contrary is without merit and contravenes the Waterkeeper decision which clearly held that CAFOs with a mere potential to discharge do not require NPDES permits. The prior discharge would be a violation of the Clean Water Act, and enforcement actions including all penalties and injunctive relief could ensue, but a permit is not required. EPA has no authority to require otherwise.
B. Agricultural Storm Water
The EPA proposes to require explicitly that large permitted and unpermitted CAFOs be required to comply with nutrient management practices that meet the requirements of 40 CFR 122.42(e)(1)(iv)-(ix) as required under the Waterkeeper decision, AND state technical standards for land application in order for runoff from their fields to be considered agricultural stormwater, which is exempt from permitting requirements. 71 Fed. Reg. 37750 (June 30, 2006). While SDCA does not object to EPA’s statement that CAFOs must comply with provisions delineated in the Waterkeeper decision in order to qualify for the stormwater exemption, we object strongly to EPA’s attempt to require large CAFOs to comply with ADDITIONAL technical standards for nutrient management established by the Director, that were not included in the Waterkeeper ruling. Nothing in the Waterkeeper decision gives the EPA authority to require such compliance. Indeed, we believe such a requirement would be unlawful because the EPA may not promulgate additional regulations for agricultural stormwater due to the fact that agricultural stormwater is considered nonpoint source pollution. The NPDES provisions of the Clean Water Act address only discharges from point sources. Congress unambiguously exempted agricultural stormwater discharges and return flows from irrigated agriculture from the definition of point source. Congress obviously exempted these activities from the scope of the NPDES permitting program precisely because it does not want EPA to regulate these activities in this manner.
Instead, Congress gave the states primary authority to address nonpoint source pollution. In 1972, Congress passed Section 208 of the Clean Water Act which specifically gave the States the authority to regulate the land application of manure as nonpoint pollution. 33 U.S.C. 1288(a). In 1987, Congress passed section 319 of the Clean Water Act in an effort to improve control of nonpoint pollution. 33 U.S.C. §1329. Both the statute and the legislative history of these laws compel the conclusion that runoff from land application of animal wastes is a nonpoint source subject to State controls, not EPA NPDES controls.
SDCA also objects to EPA’s suggestion that an appropriate approach to documentation and recordkeeping required under 40 CFR 122.42(e)(1)(ix) is “by preparing a comprehensive nutrient management plan in accordance with guidance provided by USDA and the appropriate technical standards.” 71 Fed. Reg. 37750 (June 30, 2006). Nothing in 122.42(e)(1)(ix) requires the use of a CNMP to document appropriate nutrient management practices. Appropriate documentation of nutrient management practices can take any number of forms without having to use a CNMP. The agriculture stormwater exemption can be claimed successfully as long as appropriate land application practices under 40 CFR 122.42(e)(1)(vi)-(ix), including appropriate recordkeeping, are utilized as required in the Waterkeeper decision. The EPA has no authority to require more.
IV. Nutrient Management Plans
a. Due Dates for Developing and Implementing Nutrient Management Plans
Earlier this year, the EPA revised the compliance deadline for CAFOs to develop and implement their NMPs to July 31, 2007. 71 Fed. Reg. 6978. In its latest proposal, the EPA has proposed requiring CAFOs to submit their NMPs to the permitting authority at the time of the permit application by July 31, 2007, but does not require implementation by that date. 71 Fed. Reg. 37757 (June 30, 2006). While SDCA appreciates EPA’s understanding that it would be virtually impossible to submit and implement a NMP by July 31, 2007, the proposed due date for submission of the permit application (including the NMP) is still wholly inadequate and unreasonable.
SDCA submits it is unreasonable for the EPA to expect CAFOs to move forward with a process that requires the expenditure of a large amount of money without knowing exactly what will be required of them in final rules promulgated by the EPA and the States in response to the outcome of the appeals. The date on which appeals were filed is the date on which prudent CAFO owners/operators ceased development of NPDES permits, including NMPs, until the outcome of the case and promulgation of new State and Federal final regulations were completed. The final EPA rule is not expected until May or June of 2007. State rulemakings can be expected to take from 1 to 2 years after promulgation of the final EPA rule. CAFO owners/operators know from experience that regulatory requirements can change significantly as the result of a court case and revisions to regulations. To require that they take expensive actions based on a regulation that is subject to substantial change is unreasonable and perplexing.
Surely, the EPA does not expect CAFOs to apply for a permit with so many unanswered questions regarding what exactly those permits must contain. CAFOs do not even know what the “terms” of their NMP are that must be incorporated into their NPDES permit, and they won’t know this until the final rule is promulgated in May or June of 2007.
SDCA submits that CAFO owners/operators need at least two years from the date individual States adopt final regulations that incorporate the new provisions contained in the EPA final rule to become fully permitted. In the most optimistic scenario, a State may adopt final regulations within one year of promulgation of EPA’s final rule. The more likely reality is that States will need two years to adopt final regulations given the fact that many State legislatures will have already adjourned for the year prior to May or June when EPA’s final rule is expected. That means they won’t even consider the issue until the following year: 2008. Once the EPA has issued final regulations, and States have completed all the necessary regulatory requirements, a CAFO can begin the permitting process which is expected to take at lest two years to complete (see NCBA’s comments). Requiring a CAFO to complete the permitting process in anything less than two years is unrealistic and unfair. A CAFO cannot be expected to speculate about provisions that might be in final EPA and State rules, spend large amounts of money to comply with their speculations, and then find out that their speculations were inaccurate. Good businessmen and women simply do not operate in this fashion.
b. Procedures for Permitting Authority Review
The proposed rule leaves procedures for permitting authority review largely in the hands of the permitting authority. In addition, the permitting authority would have discretion as to how to incorporate the terms of the NMP into the permit, and would be able to tailor any template to its permit process and technical requirements.
SDCA supports the use of a voluntary template. We are concerned, however, that the permitting authority may be given the discretion to require CAFOs to use the template for submission and incorporation of the terms of the NMP into the permit. We urge the EPA to clarify to the permitting authority in the final rule that use of the template is voluntary. Our producers need the flexibility of crafting nutrient management plans that work well for a particular facility. Requiring the use of a single form that does not necessarily work well for each and every CAFO would elevate form over substance, and would be subject to misinterpretation, confusion and impose extra, unnecessary burdens on them.
1. Liability Coverage Upon Submission of a NPDES Permit Application
SDCA is very concerned about the fact that the EPA has chosen to treat CAFOs differently from other NPDES permit applicants by specifically disallowing liability coverage under 40 CFR 122.28(b)(2)(iv) upon receipt of an NOI by the Director. We urge the EPA to reconsider this proposal. The submission of an NMP must offer protection against the requirement to have an NMP, even before it is incorporated into the permit through the process outlined in the rule. We also suggest that once an NMP has been submitted, liability coverage should apply to the CAFO within 60 days of the submission after a determination is made by the permitting authority that the NMP meets the requirements of the regulation, before it undergoes the public review process. If, during the public review, it is determined that the application is not in compliance, the permitting authority would have discretion to determine if liability coverage should be terminated. This approach would provide liability coverage for a CAFO that submits an NOI that is reasonably expected to be in compliance, and won’t unreasonably delay coverage until a date that could be far in the future from the date the NOI was submitted. CAFOs should not be penalized by a review process that could be very lengthy, depending on the number of NOIs that must be reviewed, available staff, and other variables beyond the CAFO’s control.
c. Procedures for Public Participation Prior to Permit Coverage
The proposed rule clarifies that the procedures for public participation in the issuance of individual permits already are established in regulation and will not be changed by this rulemaking. 71 Fed. Reg. 37752 (June 30, 2006). Under the Waterkeeper decision, however, general permits for CAFOs must be modified to include the terms of the NMP applicable to a specific CAFO. The proposal, therefore, sets forth new procedures for individual CAFOs to seek permit coverage under a general permit. SDCA offers several brief comments on the proposed approach.
Under the proposed rule, the permitting authority is required to respond to all “significant” public comments. SDCA urges the EPA to establish parameters for determining the meaning of “significant” in this context. We suggest that the EPA should consider responding only to those comments that have a solid technical/scientific basis within the purview of the Clean Water Act NPDES permit program. Responding to extraneous issues is inappropriate and should not be condoned.
SDCA encourages the EPA to establish definite circumstances, of which there should be very few, in which it would allow the public comment period to be extended on a draft NPDES permit. In addition, EPA should limit an extension of the comment period to one 30-day extension period per NOI. Otherwise, the permitting process will get bogged down and the process could take much longer than is necessary to achieve the goal of issuing permits and maintaining clean water.
SDCA strongly recommends that the EPA set guidelines on the length of a fixed comment period for each NOI/NMP submitted. We recommend that the EPA not allow more than 30 days for public comment on an initial draft permit submission; and not more than 7 days to comment on “substantial modifications” to a permit, as defined by the EPA in the final rule, allowing exceptions in only the most unusual circumstances. CAFOs should be afforded some level of certainty regarding how the process will play out when they decide to apply for a NPDES permit.