EnviroNotes

By Matt Gernand, Attorney, Environmental Law Department, Bingham McHale LLP

On July 18, 2007, the U.S. EPA finalized a rulemaking which extends the deadlines for certain confined animal feeding operations (“CAFO”) to apply for a national pollutant discharge elimination system (“NPDES”) permit and to develop and implement their nutrient management plans. See 72 Fed. Reg. 40245 (July 24, 2007). The Indiana Water Pollution Control Board adopted identical deadline extensions in June 2007. See LSA #06-501 (not yet published in the Indiana Register).

The U.S. EPA revised its CAFO regulations in 2003 to expand the universe of CAFOs regulated under the rules. The 2003 rule required that each of these CAFOs apply for an NPDES permit or demonstrate that they have no potential to discharge by February 16, 2006. In addition, the rule required all permitted CAFOs to develop and implement a nutrient management plan (“NMP”) by December 31, 2006. Subsequently, certain sections of the 2003 rule were vacated and remanded to the U.S. EPA by the Second Circuit Court of Appeals. See Waterkeeper Alliance v. EPA, 399 F.3d 486 (2nd Cir. 2005). Particularly, the court vacated the requirements for all CAFOs to apply for an NPDES permit unless they could demonstrate no potential to discharge. The court held that U.S. EPA is only authorized to require permits for actual discharges. The court also vacated the rule which allowed states to issue permits to CAFOs without inlcuidng the terms of the NMP in the permit or requiring the state agency to review the NMP. U.S. EPA first extended the deadlines to apply for an NPDES permit and to develop and implement the NMP in 2006 while it worked to revise the rules consistent with the Waterkeeper decision. That rulemaking extended the deadlines until July 31, 2007.

In June 2006, the U.S. EPA proposed a revised rule that limits the duty to apply for an NPDES permit and expands the requirements for the NMPs. Because the revised rule could not be finalized before the July 31, 2007 deadline, the U.S. EPA has again extended the deadlines for submittal of NPDES applications and the development and implementation of the NMPs. The deadline has now been extended to February 27, 2009 and the U.S. EPA is hopeful that the revised CAFO rule will be finalized before that date.

Indiana has adopted CAFO regulations modeled after the federal rules and has followed the U.S. EPA’s lead in extending the compliance dates. On June 13, 2007 the Water Pollution Control Board final adopted revisions to 327 IAC 5-4-3 to also extend the deadline for CAFOs to apply for an NPDES permit and to develop and implement NMPs to February 27, 2009. The rule has yet to be published in the Indiana Register.

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