The CAFO Rule Less than 700 cows might mean more risk

January 12, 2009 06:00 PM
 

"The new CAFO rule doesn't relate to size,” says Rob Byrne of the National Milk Producers Federation. "All operations are regulated by the new rule.”

The Environmental Protection Agency (EPA) has just placed the ball in livestock producers' court, and you have a few decisions to make.

EPA finally published its long-awaited CAFO rule on Nov. 22, 2008. The rule went into effect 30 days later, and dairies who are seeking a National Pollutant Discharge Elimination System (NPDES) permit must have a nutrient management plan on file by Feb. 27, 2009.

The final rule is the result of five years of court action. And even though it's dubbed "the CAFO rule,” dairies with less than 700 cows or 1,000 animal units need to take notice.

"The new CAFO rule doesn't relate to size,” says Rob Byrne, senior vice president of scientific and regulatory affairs for the National Milk Producers Federation. "All operations are regulated by the new rule.”

While no dairy has been allowed to discharge pollutants to the nation's water system without a permit, the need for every dairy to keep detailed records and follow a nutrient management plan (NMP) now becomes paramount. Even with records and an NMP, dairies of any size that do not acquire a permit and then have a discharge are liable for a penalty plus fines of up to $32,500 per day.

This penalty is referred to as the "duty to apply” penalty. EPA holds that an animal feeding operation (AFO) is liable for the penalty if it fails to obtain an NPDES permit to cover a discharge. Even more alarming, EPA may assess the penalty from the time of the discharge back to Feb. 27, 2009.

If, for example, you have an unpermitted discharge in late August this year, EPA could assess penalties approaching $6 million. Worried yet?

Some environmental groups say the rule was expedited by the Bush administration to take effect before Jan. 20, when President-elect Barack Obama takes office. They say CAFOs with the potential to discharge are off the hook because they are not required to obtain NPDES permits.

What is certainly true is that obtaining NPDES permits is at the discretion of AFOs that do not discharge. That optional component, however, was required by the 2nd Circuit Court in its 2005 ruling in Waterkeeper v. EPA.

In the original CAFO rule, EPA had required AFOs with a potential to discharge to obtain permits. But the 2nd Circuit Court ruled that the Clean Water Act regulates the "discharge” of pollutants, not the "potential” to discharge.

What environmentalists also fail to acknowledge is that many of the top dairy states—Wisconsin, New York, Pennsylvania and Minnesota among them—already require dairy operations with 1,000 or more animal units to have a discharge permit that is often more stringent than the EPA's. Idaho doesn't require a permit, but says dairies must have an NMP and no discharge.

Why not get a permit? Many dairy operations already do, and those that operate dairies that are likely to discharge will undoubtedly want to. But the decision to seek a permit should not be taken lightly, says Dennis Pate, director of planning for Validus, an independent certification company for environmental, animal welfare, on-farm security and worker care based in Des Moines, Iowa.

If you apply for a permit, the permit and all its parts, including your detailed NMP, are open to public review and comment. "So there are more opportunities to create situational risk and more scrutiny,” Pate says.

If you seek a permit, you now have two options for your NMP. The first is the "linear” approach, which sets the rates of application based on your cropping system as fixed in the plan, says Earl Dotson, Validus president and CEO.

Under this approach, the cropping system becomes the "terms” of the agreement and the conditions of the NPDES permit. "Almost any changes in the cropping system would trigger a requirement to revise the NMP and submit it for review and approval by the permitting authority,” Dotson says.

The second option, new under the CAFO rule, is the "narrative” approach. Here, the method of calculating the rates of nutrient applications become the terms of the permit. As long as one of the crops specified in the NMP is being raised and the annual application rate is calculated using the method specified, the NMP does not have to be re-reviewed, Dotson says.

If you apply for a CAFO permit, the permit and all its parts, including your detailed nutrient management plan, are open to public review and comment.
The rule does offer
a bit of protection from the "duty to apply” penalty if you obtain a no-discharge certification or validation even though you don't have a NPDES permit. A CAFO seeking certification or validation must have an NMP that meets NPDES standards.

The CAFO must conduct an independent study that demonstrates the facility and manure storage area will have no discharge event. The facility will still be subject to EPA or state inspections, but will not have to open its NMP to public review or submit an annual NMP report.

In the end, whether you seek an NPDES permit, more limited protections or none at all depends on your individual situation. "With or without a permit, you'll still need to do everything required by an NMP. The only difference is whether an NMP is publicly reviewed,” Dotson says.

Consult experts and attorneys who are familiar with environmental law, both federal and state. "Expect to pay $300 to $500 per hour for this advice,” Dotson says.

"EPA has trained 75 enforcers which it plans to let loose on the country. Be prepared,” he concludes. DT

PERMIT OR NO PERMIT?

Whether you apply for an NPDES permit is now your choice. Some criteria to consider:
  • Is your operation in a flood plain?
  • Do you have high annual precipitation?
  • Do you have a limited amount of manure storage capacity?
  • Do you operate close to public waters?
  • Is your land highly erodible (evaluated at a Class III or higher)?
  • Is your locality subject to a potential natural disaster?
  • Have you had a previous discharge?
  • Do you operate in a close proximity to any of your neighbors?
  • Has your operation recently attracted any media attention?
  • Do you land-apply manure but don't have or implement a nutrient management plan?Are you concerned about public review of your nutrient management plan?

Bonus content:


Click here to read the Federal Registers Final Rule.

Click here to read Waterkeeper vs. EPA decision.

Click here to view a Validus presentation.

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