Supplemental Comments On Integrator Liability

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Supplemental Comments On Integrator Liability  Posted: October 25, 2005
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax

October 25, 2005

Inventory and Data Management Section
Division of Water - KPDES Branch
14 Reilly Road
Frankfort, Kentucky 40601

Re: KPDES Public Notice 2005-29
Caleb Deweese Hog Farm, KPDES No. KY0106127
Charles Cannon Hog Farm, KPDES No. KY0106178
J.P. Amberg Hog Farm, KPDES No. KY0106020
Keith Kimbell Hog Farm, KPDES No. KY0106135
Marsh Hunt Hog Farm, KPDES No. KY0106186
Matt & Jim Moss Hog Farm, KPDES No. KY0106216
Mike Hancock Hog Farm, KPDES No. KY0106119
Ralph Wayne Adams Hog Farm, KPDES No. KY0106224
Sam Hancock Hog Farm, KPDES No. KY0106232

To Whom It May Concern:

These comments supplement those submitted by the Kentucky Resources Council, Inc. on October 24, 2005 in response to Public Notice 2005-29, which solicited public comment on the proposed issuance of KPDES permits for the above-referenced operations authorizing the construction, operation and animal waste management practices of new hog finishing operations ?including a site-specific nutrient management plan.”

On behalf of members of the Kentucky Resources Council, Inc. (KRC) who live and own property in Fulton and Hickman Counties , and who will be adversely affected and aggrieved within the meaning of applicable law to the extent that these permits are not substantially strengthened, KRC submits the following supplemental comment concerning co-permitting of the corporate integrators for each of the proposed permits.

In the October 24, 2005 comments, KRC argued that the agency should require that the corporate integrators who are contracting with the applicants for the rearing and feeding of the hogs, be required to cosign any permit and to accept liability as a permittee. In further support of those recommendations, KRC provides these comments:

Under the Clean Water Act, responsibility for compliance rests with both the owner and operator of a facility. “The CWA imposes liability both on the party who actually performed the work and on the party with responsibility for or control over performance of the work.” United States of America v. Lambert, 915 F.Supp. 797, 802 (S.D. WV 1996), citing United States v. Board of Trustees of Florida Keys Community College, 531 F. Supp. 267, 274 (S.D.Fla. 1981). See also: United States of America v. Sargent County Water Resource District, 876 F.Supp. 1081 (S.D. N. Dak. 1992). See also: Brehm, From Red Barn to Facility: Changing Environmental Liability to Fit the Changing Structure of Livestock Production, 93 Calif. L. Rev. 97 (2005).

In order to determine whether the party contracting with these applicants has sufficient control over the performance of the work, it is necessary for the Cabinet to obtain copies of each of the contracts and to review the degree of control exercised through those contracts.

While EPA did not include a mandatory requirement in the final CAFO regulations that integrators be jointly permitted with their growers as operators of CAFOs, the discussion by the agency in the preamble to the proposed rules is fully consistent with the prevailing case law. Any person exercising “substantial operational control,” which EPA identified as directing activities at the facility or ownership of the animals or specifying how the animals are grown, fed, or medicated, should be a required signatory. That EPA chose not to include in the final rule the identification of factors that the agency believed indicate sufficient operational control to be considered an “operator,” EPA’s acknowledgement in the proposed rule remains the law: “[u]nder the existing regulation and existing case law, integrators which are responsible for or control the performance of the work at individual CAFOs may be subject to the CWA as an operator of the CAFO.” 66 Fed. Reg. 2968, at 3024.

For the reasons stated in KRC’s October 24, 2005 comments, and as amplified here, KRC respectfully requests that:

1. The agency require submittal of copies of the contracts between the grower applicants and the corporate integrator, and

2. That the agency review the terms and conditions of the contracts and of the business relationship between the parties, and make a determination as to whether there is sufficient control or responsibility to categorize the integrator as an “operator” to whom the permit conditions and compliance obligations of the Clean Water Act and KRS Chapter 224 attach.]


Tom FitzGerald

By Kentucky Resources Council on 10/25/2005 5:32 PM
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