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New Indiana CFO and CAFO Rules Effective July 1, 2012

07.09.2012

By Andy Bowman, Attorney, Bingham Greenebaum Doll LLP

In response to EPA’s 2008 revisions to the federal concentrated animal feeding operations (CAFO) rules and the Indiana General Assembly’s amendment of the confined feeding operation (CFO) law in 2009, the Indiana Water Pollution Control Board on November 9, 2011, final adopted a new rule governing CFO approvals and operations at 327 IAC 19 that replaced the former CFO rules at 327 IAC 16.  At the same time, the Board final adopted a new CAFO rule by incorporating by reference the 2008 federal CAFO rules, except that the Board eliminated the 2008 federal CAFO rule National Pollutant Discharge Elimination System (NPDES) permit requirement for CAFOs that propose to discharge, but do not in fact discharge, which was invalidated by a 2011 decision of the U.S. 5th Circuit Court of Appeals in National Pork Producers v. EPA.  This rule also eliminated the general NPDES permit option that was formerly available to CAFOs and makes Indiana’s CAFO requirements consistent with current federal requirements.  Both the new CFO rule and new CAFO rule became effective on July 1, 2012.  Existing CFOs will have until September 28, 2012 to put in place an emergency response plan.

Under the former regulatory framework, Indiana had approximately 1,527 farms operating under CFO approvals and 625 farms with either an individual NPDES permit or a general NPDES permit.  Under the new rules, the Indiana Department of Environmental Management (IDEM) estimated that about 458 CAFOs will no longer need an NPDES permit and will transition to a CFO approval.  After the transition is completed, IDEM anticipates there will be approximately 1,995 farms governed by the new CFO rule with a CFO approval and about 46 farms under the CAFO rule with an individual NPDES permit.

In April 2012, IDEM sent letters to existing CFO owners explaining their transition options and requirements.  The letters included an one-page transition form required to be completed and returned to IDEM by June 15, 2012.

On the transition form, holders of CAFO NPDES general permits were required to either elect to transition to the CFO approval program or apply for an individual NPDES permit.  NPDES general permit holders who made a timely election to transition to the CFO approval program are required to operate under 327 IAC 19 until their NPDES general permit expires and must comply with the CFO approval renewal procedures no less than 30 days prior to the expiration of the NPDES general permit.  As of June 22, 2012, about 126 farms had not submitted a completed transition form.  Pursuant to 327 IAC 15-16-13(d), a farm that failed to submit the required transition form by June 15 must submit a full application for a CFO approval, including notification of owners and occupants of adjacent land and land within one-half mile of the waste storage structures as well as the county commissioners.  According to IDEM staff, however, any farm submitting the form by June 30, 2012, would be allowed to transition to the CFO program without filing an application.

According to IDEM, a CAFO NPDES general permit holder who did not submit the transition form by June 30, 2012, will be without a permit or approval and continued operation would be in violation of the CFO rule until it has applied for and obtained a CFO approval.  Farms in this situation also may be exposed to potential civil claims from neighbors and violations of local zoning ordinances or other ordinances and possibly be in breach of the terms of loan documents, leases or other agreements.

The new CFO rule contains several new requirements for existing and newly constructed facilities including application rates based on soil phosphorous levels, emergency response plans, and storm water management practices.  The CFO rule also includes a prohibition on the surface application of manure to snow covered or frozen ground, except CFOs may do so only in limited circumstances: (1) as the result of “emergency” situations in accordance with required procedures; or (2) existing CFOs with less than 120 days storage capacity.

To assist producers to comply with the new CFO rule and new CAFO rule, IDEM issued its Guidance Manual for Indiana Confined Feeding Program on June 15, 2012.  This 124-page manual provides explanations of the key program requirements of Indiana’s CFO rule and CAFO rule and includes website references, examples of required application materials, testing resources, and relevant Extension Service publications.  As of late June, IDEM’s web page had not yet been updated and continues to reference the former CFO rule and former CAFO NPDES general permit.  At that time the Guidance Manual had not been posted on IDEM’s website.  The Guidance Manual can be obtained by contacting IDEM’s Confined Feeding Permits Section at 1-800-451-6027, extension 2-3111, or 317-232-3111.  Operators will want to review both the full rules and the Guidance Manual.


To view a complete PDF of the May/June 2012 issue of the Environmental Letter, click HERE.

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