by Jay Collert, Chmm, CET
As part of a final rule issued in 2003 by the EPA, Concentrated Animal Feeding Operations (CAFO) were required to apply for NDPES permits and establish effluent guidelines. Legal challenges were answered by the Second Circuit Court of Appeals with its decision in Waterkeeper Alliance, et al., v. EPA. The agency was directed to remove the requirement for all CAFOs to apply for NPDES permits, and add those for Nutrient Management Plans (NMPs) to be submitted by CAFOs with permit applications, reviewed by permitting authorities and the public, and the NMP terms incorporated into permits. The revised regulations for CAFO, signed Oct. 31, address this legal decision.
The final rule includes two key changes. First, it revises the requirement for all CAFOs to apply for NPDES permits and instead requires only those CAFOs that discharge or propose to discharge to apply for permits. In the discussion accompanying the revised rule, EPA provides added clarification on how operators should evaluate whether they discharge or propose to discharge. As explained in the final rule, this evaluation calls for a case-by-case determination by the CAFO owner or operator as to whether it does or will discharge from its production area or land application area based on an objective assessment of the CAFO's design, construction, operation and maintenance. Second, the rule adds new requirements relating to NMPs for permitted CAFOs. CAFO operators were already required to develop and implement NMPs under the 2003 rule; the new rule requires CAFOs to submit the NMPs along with their NPDES permit applications.
Permitting authorities are then required to review the NMPs and provide the public with an opportunity for meaningful review and comment on the plans. They're also required to include terms of the NMP as enforceable elements of the permit. More information can be found at the CAFO final rule page. The rule deadline for newly defined facilities to apply for permits is Feb. 27, 2009.About the Author: A nationally recognized environmental consultant, Jay Collert is training director at the Aarcher Institute of Environmental Training LLC, based in Houston, TX. Contact: 281-256-9044, [email protected] or www.aarcherinstitute.com