Four years ago, a federal court rendered a decision pertaining to pesticide regulation that is a looming threat to agriculture, especially for livestock producers. State agencies and environmental activists are leveraging the precedent established in National Cotton Council v. EPA (2009) to require livestock operations to seek permits under the Clean Water Act or face fines of up to $37,500 per day based on air emissions from farming operations.
The National Cotton Council case challenged EPA’s 2007 regulation that attempted to simplify the Clean Water Act’s regulatory burden on pesticide applicators. Point sources of pollution (typically facilities with pipes or ditches emptying into a waterway) can only legally discharge pollutants if the discharge is in compliance with a National Pollutant Discharge Elimination System (NPDES) permit. EPA’s proposed pesticide regulation stated that applicators did not need a NPDES permit as long as pesticides were applied in compliance with the Federal Insecticide, Fungicide and Rodenticide Act.
Redundant regulations. Ag interests and environmental groups challenged the pesticide regulation. The issue at hand was whether pesticides that entered waterways could be defined as "pollutants" under the Clean Water Act. The Sixth Circuit Court of Appeals held that pesticides, at the time of application, are not pollutants under the Clean Water Act because they serve a useful purpose. However, the court held that "pesticide residue" and "excess pesticides" are pollutants that can be regulated under the Clean Water Act as chemical or biological wastes. Under this illogical reasoning, the forces of nature, time and topography can conspire to convert a non-pollutant into a pollutant.
Under this illogical reasoning, the forces of nature can convert a non-pollutant into a pollutant
Livestock producers should be concerned about this case because the court held that EPA can require a NPDES permit even if pollutants are not discharged directly into waterways, but instead enter waters over time through air deposition or stormwater runoff. The court held that excess pesticide and pesticide residue were discharged from a point source, thus requiring a NPDES permit, even though it was not excess or residue at the time it left the applicator’s nozzle.
Modern animal agriculture has been in EPA’s crosshairs for quite some time. Twice, EPA unlawfully tried to require all large Concentrated Animal Feeding Operations (CAFOs) to obtain expensive and cumbersome NPDES permits, regardless of whether the CAFOs discharge pollutants into waterways. In 2005 and 2011, federal appellate courts tossed out EPA’s CAFO rules, holding that cattle feedlots, hog barns and poultry houses were only required to obtain NPDES permits if they actually discharged pollutants.
In response, federal regulators have adopted a new tactic to require livestock operations to obtain NPDES permits—proving the existence of a discharge. However, proving discharges on livestock operations are usually difficult without a rare spill or leak. Unlike other point sources, CAFOs typically do not have pipes or ditches channeling waste into waterways because the manure and litter is stored, treated and used as a soil amendment.
Instead, EPA has aggressively sought to require livestock operations to obtain NPDES permits based on dust and feather particles that land on the ground and mix with stormwater. EPA is employing the same logic used in the National Cotton Council case: pollutants can be "discharged" by point sources in violation of the Clean Water Act through indirect means, such as wind drift and runoff.
We know animal operations produce airborne dust particles that contain manure, litter, feathers and dander, but eliminating dust from livestock operations is prohibitively expensive and nearly impossible.
EPA has targeted these "dust and feather" discharges as a vehicle for requiring NPDES permits—most recently on a West Virginia poultry operation. This bootstrapping of "discharges" is cynical and clearly exceeds the original intentions of the Clean Water Act. If EPA continues on this path, many livestock producers will be saddled with additional costs and the burden of obtaining and complying with NPDES permits.
John Dillard is an associate attorney with OFW Law, a Washington, D.C.-based firm that serves agricultural clients before federal and state courts, EPA, FDA, USDA and OSHA. Contact him at firstname.lastname@example.org. Check out his blog at www.agweb.com/ag_in_the_courtroom. This column is not a substitute for legal advice.