The United States Environmental Protection Agency faces an obligation to propose, before June of this year, a rule under the Clean Water Act which will impose reporting requirements upon owners and operators of concentrated animal feeding operations (PDF), or CAFOs, which include certain dairy and poultry farms, horse racing tracks, rodeo facilities, and many other types of operations. 

As EPA estimates that there are thousands of CAFOs which should have applied for National Pollution Discharge Elimination System, or NPDES, permits but did not do so (PDF), EPA is likely to propose that every CAFO—regardless of whether is has a permit or even discharges—provide information which will enable EPA to determine if the facility must obtain a permit and if it is otherwise in compliance with CAFO regulations. 

The expected proposed rule’s reporting requirements will place noncompliant CAFOs at heightened risk of EPA enforcement action.  EPA is also obligated to release to the public the information it collects on CAFOs under the new rule, which could place CAFO owners and operators at risk of citizen suits. 

In light of this expected proposed rule, the window may quickly be closing for CAFOs to come into compliance with CWA requirements, including by contacting EPA to self-report noncompliance, before EPA undertakes what could be a significant enforcement initiative.  Waste-to-energy opportunities may arise as CAFOs evaluate their waste management practices and potentially modify their facilities in response to the CAFO compliance push. 

EPA’s obligation to issue a proposed CAFO reporting rule arises from a settlement agreement it reached with the Natural Resources Defense Council, Sierra Club, and Waterkeeper Alliance in May 2010, which resolved a petition those groups filed in the Ninth Circuit for review of EPA’s November 2008 CAFO rule (a rule that was promulgated in the wake of a Second Circuit decision which vacated in part EPA’s 2003 CAFO rule, a decision triggered by petitions from some of these same environmental groups).  Under the settlement agreement, the environmental groups also have the right to petition EPA to toughen CAFO permitting requirements by establishing categories of operations which would be required to obtain NPDES permits because they “presumptively discharge.” 

EPA’s regulations require all CAFOs which discharge or propose to discharge to obtain NPDES permits.  A CAFO “proposes to discharge,” as defined at 40 CFR 122.23(d), if the CAFO

is designed, constructed, operated, or maintained such that a discharge will occur,” regardless of the volume or duration of the discharge.  Any discharge of manure, litter, or process wastewater from land application areas is covered by the regulations, unless the discharge is exempt as an “agricultural stormwater discharge.  

Permitted CAFOs may discharge in accordance with the conditions of their permits, but under the Clean Water Act, unpermitted CAFOs may not lawfully discharge under any circumstances. 

These new Clean Water Act reporting (and, potentially, permitting) requirements are not the only regulatory developments of which CAFOs need to be aware; a 2009 petition requested that EPA issue Clean Air Act new source performance standards which address the emissions from CAFOs, including greenhouse gas emissions, and EPA released last month the results of a study on the air emissions from CAFOs. 

The CAFO compliance push could present opportunities for cleantech companies as CAFO compliance may well go hand-in-hand with waste-to-energy technologies, such as methane capture or thermal gasification.  These technologies can reduce the amount of waste requiring disposal, potentially easing CAFO compliance challenges, and also be used to generate energy and reduce emissions.  Government grant or loan programs incentivize the use of these technologies, and regulators enforcing climate change laws, such as California’s AB 32, have contemplated mandating them. 

The time may be ripe for CAFOs, which will be forced by the compliance push to think about their waste management practices and perhaps even modify their facilities, to install waste-to-energy technologies.