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December 03, 2013 Articles

Airborne CAFO Emissions: Beyond the Outer Limits of CWA Jurisdiction?

The EPA hits another roadblock in requiring NPDES permits for poultry and livestock operations.

By Stewart D. Fried and John G. Dillard – December 3, 2013

For more than four decades, the U.S. Environmental Protection Agency (EPA) has controlled discharges of pollutants from point sources through the National Pollutant Discharge Elimination System (NPDES) permit program. Section 402 of the Clean Water Act (CWA), 33 U.S.C. § 1342, prohibits the discharging of pollutants from a point source into a “water of the United States” unless a facility has been granted an NPDES permit that explicitly allows discharges. Under the CWA, a “point source” is any discernible, confined, and discrete conveyance . . . from which pollutants may be discharged.” CWA § 502(14), 33 U.S.C. 1362 While the vast majority of point sources regulated by the EPA are confined and discrete conveyances for water, including pipes, ditches, channels, tunnels, and wells, they also include concentrated animal-feeding operations (CAFOs). EPA regulations define CAFOs as agricultural facilities where animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period where crops are not grown. 40 C.F.R. § 122.23. During the past decade, the EPA has vigorously attempted to regulate these large agricultural facilities under the CWA, with varying success. One complication that the EPA faces in its efforts to regulate CAFOs is the CWA’s statutory exemption for “agricultural stormwater discharges.” 33 U.S.C. § 1362(14).


The EPA’s 1976, 2003, and 2008 CAFO rules 
The EPA’s first CAFO regulation, promulgated in 1976, required all large CAFOs—more than 1,000 animal units—that discharged pollutants to obtain an NPDES permit. (Under the EPA’s prior animal-unit regulation, a large CAFO housed the equivalent of 1,000 cattle or cow/calf pairs; 700 mature dairy cows; 2,500 swine; 55,000 turkeys; or 125,000 chickens. 40 C.F.R. § 122.23(4).) Under the 1976 rule, medium and small CAFOs that discharged were also required to have NPDES permits under certain circumstances. (Under the EPA’s prior animal unit regulation, a medium CAFO houses the equivalent of 300–999 cattle or cow/calf pairs; 200–699 mature dairy cows; 750–2,499 swine; 16,500–54,999 turkeys; or 37,500–124,999 chickens, 40 C.F.R. § 122.23(6), and a small CAFO is an animal feeding operation that is not designated a medium or large animal feeding operation. 40 C.F.R. § 122.23(9).) The 1976 rule remained in place until 2003, when the EPA promulgated a new rule pursuant to a 1992 consent decree that required it to establish new effluent limitations for CAFOs. See NRDC v. Reillymodified sub. nom. NRDC v. Whitman, No. 89–2980 (D.D.C. January 31, 1992).

In its 2003 rule, the EPA attempted to more broadly regulate CAFOs. Rather than focus on which CAFOs were required to possess an NPDES permit, the 2003 rule regulated which CAFOs were required to apply for one. Specifically, the 2003 rule required all CAFOs to apply for a permit if the CAFO discharged or had the potential to discharge. The EPA reasoned that all CAFOs had the potential to discharge pollutants, and accordingly, the 2003 rule served as a blanket requirement for all CAFOs to apply for an NPDES permit.

Not surprisingly, the 2003 rule was challenged by animal agricultural interests, as well as environmental groups. In Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005), the Second Circuit held that the EPA could not require CAFOs to apply for permits based merely on a “potential to discharge.” Id. at 504–06. The Waterkeeper court further explained that the Clean Water Act only granted the EPA authority to regulate “actual discharges—not potential discharges, and certainly not point sources themselves.” Accordingly, the 2003 rule’s “duty to apply” was invalidated.

In 2008, the EPA promulgated a new CAFO rule that closely mimicked the 2003 rule. Under the 2008 rule, all CAFOs were required to apply for an NPDES permit if the CAFO discharged or proposed to discharge. One variation from the 2003 rule, however, was that the 2008 rule provided for civil penalties of up to $37,500 per day for CAFOs that did not apply for an NPDES permit. Once again, livestock and other agricultural groups sought judicial review, and their petitions for review were consolidated and randomly assigned to the Fifth Circuit. The outcome proved to be yet another setback for the EPA in its efforts to regulate CAFOs. In National Pork Producers Council v. EPA (NPPC), 635 F.3d 738 (5th Cir. 2011), the Fifth Circuit roundly rejected the EPA’s “duty to apply” provision and its accompanying fines. The NPPC panel rejected the proposition that a CAFO had a duty to apply for a permit based on “proposed discharges” and held that the EPA could only require a CAFO to obtain an NDPES permit based on actual discharges of pollutants into jurisdictional waters.

NPPC also addressed challenges to EPA guidance letters by several poultry-trade associations relating to releases of dust and feathers from CAFO ventilation fans. After issuing the 2008 CAFO rule, the EPA distributed three guidance letters explaining its enforcement policy with respect to such discharges from poultry houses, indicating that it viewed “[poultry] litter released through confinement house fans” a pollutant and stormwater runoff containing poultry litter a discharge of pollutants requiring an NPDES permit. In concluding it lacked jurisdiction to address these challenges, the Fifth Circuit held that the EPA’s dust-and-feathers guidance letters were not final agency action because they did not “create new legal obligations” or “affect [chicken farmers’] rights or obligations.” Instead, the court of appeals determined that the EPA’s guidance merely reiterated what types of discharges were already subject to NPDES permitting requirements.

Despite the seeming clarity of the Waterkeeper and NPPC opinions regarding its lack of authority to broadly require CAFOs to apply for NPDES permits absent an actual discharge, the EPA’s repeated regulatory efforts in this area can best be described as a governmental demonstration of the proverb “if at first you don’t succeed, try, try again.” Capitalizing on the narrow portion of the NPPC opinion that did not strike its poultry-house ventilation-barn guidance and aided by what was then believed to be largely unchallengeable authority to issue administrative compliance orders (ACOs) free from judicial review, the EPA has renewed its efforts to regulate CAFOs with vigor.

EPA’s Issuance of an ACO to Eight Is Enough
On November 14, 2011, the EPA issued an ACO to Lois Alt, the owner of Eight Is Enough,an eight-house broiler-chicken operation in West Virginia. In its ACO, the EPA determined that Alt violated the CWA by discharging pollutants without a permit and sought to compel her to obtain an NPDES permit or face civil penalties of up to $37,500 per day and criminal proceedings.

In one of the first post-Sackett challenges to an ACO, Alt sought a declaration that the EPA exceeded its authority in determining that she violated the CWA, arguing that the agricultural-stormwater exemption applied to runoff from “farmyards”—areas outside a farm's production barns, manure storage, and composting areas. The EPA, recognizing the significance of an adverse judicial decision, attempted to moot the case by withdrawing the ACO against Alt. In Lois Alt, d/b/a Eight Is Enough v. EPA, No. 2:12-CV-42 (N.D. W.Va. Oct. 23, 2013), the Northern District of West Virginia declined to dismiss the case based on the pendency of EPA administrative actions against other farmers on similar grounds, and concluded that the agency did not have authority to compel Alt to apply for an NDPES permit.

NDPES Permits Not Required for Poultry-Barn Discharges Outside Production Areas
In Alt, the district court concluded that CWA permits are not required solely on the basis of dust, feathers, and chicken litter from poultry barns that are washed by rainfall from areas outside a facility’s production area to watercourses subject to federal jurisdiction. In a decision with broad implications for production agriculture, the Northern District of West Virginia concluded that stormwater runoff containing dust, feather, manure/litter, and dander particles discharged from Alt’s poultry facility that landed outside the production area were agricultural stormwater discharges exempt from CWA permit requirements. The decision is another setback for the EPA in its persistent efforts to require poultry and hog producers to obtain NPDES permits even when pollutants are not discharged into federally regulated waters.

Alt held that a CAFO’s “production areas” are limited to those used for housing animals and the storage of manure/litter, mortalities, and raw materials. “Agricultural stormwater discharge” is not defined in the CWA or EPA regulations. In using its “ordinary meaning,” the Northern District of West Virginia concluded that dust, feathers, and litter discharged from Alt’s operations were indisputably agricultural in nature and would have remained in place but for the precipitation event that conveyed stormwater (which included the discharged materials) to a watercourse subject to federal jurisdiction. Based thereon, the court concluded that runoff from areas outside a facility’s production area are agricultural stormwater discharges exempt from NPDES permitting requirements.  

The district court’s ruling undercuts the EPA’s continuing efforts to require production-agriculture facilities to obtain NPDES permits. Another recent case involving dust-and-feathers discharges from a Maryland poultry facility, Waterkeeper Alliance v. Hudson, 2012 WL 6651930 (D. Md. Dec. 20, 2012), resulted in a verdict for the contract farmer and Perdue, the owner of the chickens raised in the Hudson barns. The result in that citizen suit was not based on the agricultural stormwater exemption. Instead, the court focused on the plaintiff’s lack of proof of observable discharge of pollutants from the chicken barns into a ditch at the Hudson farm or which otherwise made its way into federally regulated waters.

In all likelihood, the Fourth Circuit will be the first appellate court to clarify whether EPA Region 3 has authority to require CAFOs to obtain NPDES permits based on airborne emissions of agricultural byproducts emitted from poultry and livestock barns. For the time being, the decision in Alt stands for the proposition that requiring poultry and livestock producers to obtain NPDES permits based on emissions of dust and other airborne particles incidental to production agriculture goes beyond the limits of  the EPA’s authority under the Clean Water Act.

Keywords: environmental litigation, EPA, CWA, clean water act, dust and feathers, pollutant, discharge, federally regulated waters, concentrated animal feeding operation

 

Stewart D. Fried is a principal and John G. Dillard is an associate with Olsson, Frank, Weeda, Terman, Matz, P.C., in Washington, D.C.


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