As you know, the Waterkeeper decision considered and resolved numerous challenges from environmental and industry groups to the final permitting and effluent limitation guidelines adopted by the USEPA in 2003 to regulate water pollution associated with “concentrated animal feeding operations.”
The Court’s decision on the “duty to apply” raises several related question concerning which facilities must apply for NPDES permits under the federal program. The decision rejected the requirement of the CAFO rule “that CAFOs either apply for a permit – and comply with the effluent limitations contained in the permit – or affirmatively demonstrate that no permit is needed because there is “no potential to discharge[,]”, not because the Court believed that EPA was acting without reason in imposing the obligation on large CAFOs but because Congress limited EPA’s authority to regulating the actual discharge of any pollutant, not the potential to discharge.
The decision raises the question for the state of whether a change is needed in either the language or manner of application of 401 KAR 5:005, which currently requires that animal waste handling systems meeting the definition of a CAFO must obtain a 5:005 and a KPDES permit.
The Council believes that the Cabinet is not obligated to alter its current approach to regulation of animal waste handling systems. Animal waste handling systems that do not meet the definition of CAFOs either because they fall below the numerical threshold to be considered a CAFO or because they do not discharge except in response to a storm even greater than 25 year 2-hour frequency, remain subject to an independent state permitting obligation under 5:005 that is grounded in the broad legislative goal of safeguarding water from pollution and prohibiting direct and indirect discharges of pollutants under KRC 224-70-110(2) and 70-110. Those facilities conveying, storing or treating manures prior to land application are subject to 5:005 Sections 2, 24, 25, 27, and 29(1)(h) and (i), including Sections 24(4)(a) and 25(2) which authorize the Cabinet to impose such special conditions that are necessary to assure compliance with the laws and regulations.
The Waterkeeper decision rejected EPA’s authority under the Clean Water Act to require under the NPDES regulations, that a source affirmatively apply for a NPDES permit or demonstrate the lack of discharge, based on the term “discharge of a pollutant” which is keyed to the addition of a pollutant to a navigable water.
Kentucky law is not so limited, but in fact broadly empowers the agency to prevent the creation of any new pollution and to safeguard from pollution the uncontaminated waters of the Commonwealth. The prohibition on pollution in KRS 224.70-110 reaches direct and indirect discharges and evinces a broader remedial intent than regulating “discharges of a pollutant.”
Likewise, KRS 224.16-050 vests in the Cabinet specific authority to issue federal permits pursuant to the NPDES program and, in subsection (4), restricts the Cabinet’s authority to impose in a permit issued under that program an effluent limitation, monitoring requirement or other limits greater than would have been imposed had the permit been issued by the federal agency, but in no fashion restricts the ability of the state to require a permit from an entity that would not necessarily be obligated by EPA to apply for a permit after the Waterkeepers decision. The current state regulation at 401 KAR 5:005 providing that agricultural waste systems that convey, store or treat manure from a CAFO comply with Section 2, 24, and 29(1)(h) and (i) and obtain a KPDES permit can continue to be applied as it has, requiring the applicant to justify and demonstrate as part of the 5:005 process whether it falls within or without the CAFO definition.
An agricultural waste handling system owner and operator may believe, at first blush, that some advantage is derived from not holding a KPDES permit, yet such is likely not the case. For if the facility no longer possesses a KPDES permit, the disposal of livestock waste on land by the animal waste handling facility is no longer categorically exempt from RCRA, 42 USC 6903(27), and is subject to regulation as a solid waste disposal activity exempt only if it meets the narrow exclusion for those applications of “solid or dissolved material in . . . manure on the soil for return to the soil as fertilizers.” Additionally, the source is subject to agency enforcement action in the event of a discharge in response to a rainfall event of less than a 25-year, 24-hour event.
In sum, KRC believes that the Waterkeepers decision does not mandate a change in state regulation or in the obligation of an agricultural wastes handling system to obtain a KPDES permit if it is a CAFO. In any event, as KRC has previously recommended in the context of comments submitted on July 25, 2005 (which are attached as an appendix to this letter), the Cabinet has ample authority under state regulation independent of the Clean Water Act, at 401 KAR 5:005 Sections 24 and 25, to impose as a matter of best professional judgment, a comprehensive nutrient management plan and other requirements necessary to prevent air, land and water pollution.
The Waterkeepers decision does, however, require that the General permits issued by the Cabinet for beef, dairy, poultry and swine be reopened and revoked.
In rejecting that portion of the final rules that failed to require that the specific restrictions on application rate and other limiting terms of the nutrient management plans be reviewed by the agency and be incorporated into the NPDES permit as an effluent limitation, and which failed to provide that the nutrient management plans be available to the public for review and comment, the Court’s decision cast doubt on the validity of the Cabinet’s general permits for beef, dairy, swine and poultry, which likewise did not provide for individual agency review of the site-specific CNMPs and inclusion of the terms of those plans as permit limits. This letter serves to request that the agency reopen those general permits due to the lack of public availability and opportunity to review the plans, the lack of agency review of the sufficiency of the plans, and failure to include in the permits limitations based on the terms of the CNMPs.
Thank you in advance for the opportunity to express these concerns.
cc: Peter Goodman, Division of Water
Bruce Scott, Division of Waste Management
Scott Smith, Office of the Secretary