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by Seth Teter

The Ohio Livestock Coalition (OLC) is suing the Ohio Environmental Protection Agency (EPA) following the January release of the general National Pollution Discharge Elimination System (NPDES) permit for concentrated animal feeding operations (CAFOs).

OLC Executive Director David White said the permit exceeds state and federal EPA authority, is not based on sound science and places unreasonable economic hardships on livestock producers.

The U.S. EPA issued a rule in 2003 requiring CAFOs to apply for coverage under a federal NPDES permit by April 2006. According to White, the Ohio EPA has since worked to finalize the general permit as an efficient way to provide NPDES permit coverage needed by more than 120 large livestock farms in Ohio.

The OLC and eight of its member organizations filed a legal notice with the Ohio Environmental Review Appeals Commission (ERAC), listing 66 assignments of error in the permit. OFBF is a member of the OLC.

The lawsuit does not contest the 2003 U.S. EPA rule but challenges the way the Ohio EPA is administering it.

"First of all, we believe producers should have the choice to seek general or individual permit coverage options," White said.

White added that revisions to the permit language are needed.

"When we look at the science they’re trying to use to restrict and or prohibit application of manure onto frozen or snow covered ground, there’s not even a definition of frozen or snow covered ground within the permit," he said.

The new regulations also prohibit manure application during a 24-hour period in which there is a 50 percent or greater forecast of precipitation.

"That means if a little summer drizzle came up and you were applying manure, you would be in violation of the permit," White said. "The permit language would be best worded to say that producers shall not apply manure before, during or after a precipitation event that would lead to a pollution event."

The Ohio EPA had twice officially requested comment regarding its proposed permit, and both times the OLC submitted comments requesting that specifically identified problematic issues be corrected. According to White, upon the director of the Ohio EPA issuing the final permit, the OLC conducted an extensive and exhaustive legal and technical review of the permit. White said with several of these problems unresolved, the OLC was left with no other option but to make the issue a legal matter.

Hearings in the case are expected to begin in six months and it may take up to 18 months before ERAC issues its ruling, which may then be appealed. The general NPDES permit will remain in effect until the appeals process is exhausted.

"Obviously this is a very costly process as well as time-consuming," White said. "But we thought it was well worth it, because we have to stand up for what’s right for Ohio’s livestock producers."

Court sides with Farm Bureau on NPDES permit
A federal appeals court issued a ruling Feb. 28 that prevents the U.S. EPA from requiring livestock producers to apply for an NPDES permit if they do not discharge into waters of the United States.

"The court recognized the permitting process would have been the same as requiring a person to apply for a driver’s license even though they never plan to drive," said American Farm Bureau President (AFBF) Bob Stallman.

AFBF, along with livestock organizations and environmental groups, provided arguments against U.S. EPA’s CAFO regulations.

The court also upheld U.S EPA’s exemption for storm water runoff where application has been in compliance with a nutrient management plan (NMP). However, the rule required every permit to include an NMP and be made available for public comment before being issued.

"We see this as tremendously burdensome to the EPA and state agencies as well as mandating unnecessary public scrutiny of a livestock producer’s proprietary business information," Stallman said.