MEMORANDUM

SUBJECT:	Notes from CAFO Industry Meeting with Ben Grumbles on November
7, 2007

FROM:	Allison Wiedeman

		

TO:		File

In attendance:

Allison Wiedeman (EPA/OWM), Danielle Quist (American Farm Bureau
Federation), Tom Hebert (Ogilvy Government Relations), Ellen Steen
(Crowell & Moring LLP), Jon Scholl (EPA/OA), Sylvia Horwitz (EPA/OGC),
Sarita Hoyt (EPA/OWM), Benjamin Grumbles (EPA/AA-OW), Bill Anderson
(EPA/OW), Jim Hanlon (EPA/OWM)

Discussion:

Tom:	Ogilvy is representing United Egg Producers and Swine Industry
(Pork Producers)

Whether or not a producer gets a permit, they will still be in
compliance with the rule.  They expect their producers to do that. 
Recognizing this – they want to make sure operators have a choice
whether to get a permit, without pressure.  They understand if they
discharge, they will be in violation.  To protect their interest in
making this choice – believe that if they need a permit it was
incumbent on permitting authority as presented in the proposal. 
However, don’t see anything in CWA, judicial record, or Waterkeeper
that there is a duty to apply particularly without a discharge and that
they have no liability to get the permit.  Asked that the Duty to Apply
be eliminated or carefully handled.  Also want operators to be able to
terminate permit.

Ben:	We are in deliberations with USDA and OMB. It is important to the
Agency that there are incentives provided and regulations to encourage
operators to apply before a discharge.  Does not want to be “after the
fact” program and have permit program turned on its head.  Two policy
questions:  What incentives can we all provide to ensure operators seek
coverage before they discharge? Do you believe an operator should be
able to unilaterally terminate permit when operator believes there
longer is a discharge?

Tom:	What circumstances could arise where a discharge would occur from a
CAFO such that they would need a permit?

Ben:	What we are trying to do is to have a rule that says if there is a
discharge, the operator should be covered with a permit when the
discharge occurs and not after.  Doesn’t want it to be totally an
enforcement program.  Trying to find ways to encourage and not require
an operator to get a permit before they discharge.

Ellen:	Concerned also condition where permit coverage is not available,
like TMDL situation.

Tom:	The majority of pork operators are designed not to discharge.  If
they do, then it would be an accident of large scale event where a
permit would not have prevented the discharge anyway.  So they feel
operators would essentially not be affected by regulation anyway.  Still
believes if need to get a permit before – still very close to
“potential” – it’s not so much about EPA’s management of
regulatory program, but citizen suits – without permit, won’t be in
violation of the court.  With permit, lots of ways to be litigated
against.

Don’t believe many things in NMP would be a permit violation and they
don’t have anything to do with water quality.  If an operator is doing
everything right and something goes wrong – they could retroactively
be presumed to have a duty to apply – citizen groups will sue on the
basis that they should have had a permit.  They would like to partner
with EPA to ensure operations achieve zero discharge. Want to engage in
a partnership with EPA.

Jim: 	The facilities that are well managed and have accidents and
anomalous weather events are not the issue.  But for mismanaged
facilities without expectation that they need to get a permit before a
discharge it means Permitting Authorities have to be in a ‘gotcha
program’ – focus on enforcement- much resources.  Their reading of
the statute – does everyone get one free discharge?

Ellen:  	No free discharge – Get the 301 count, not 308 – Again, no
duty to apply

Tom:	Where operations are underdesigned, need to correct underdesign if
they get a permit, but it would have to if they didn’t get a permit
either.

UEP started program called ‘Water Care’ to determine readiness to
comply with CAFO regs without a permit.

MEMORANDUM

SUBJECT:	Notes from Dairymen’s Association Meeting with Ben Grumbles
on                   			November 7, 2007

FROM:	Allison Wiedeman

		

TO:		File

In attendance:

Allison Wiedeman (EPA/OWM), Lance Kotschwar (CA Dairies, Inc.), Charles
Garrison (Western United Dairymen), Jon Scholl (EPA/OA), Benjamin
Grumbles (EPA/AA-OW), Bill Anderson (EPA/OW)

See Attachments (2)

Unsure about people trying to exempt manure from EPCRA/CERCLA –
initiative dead in Congress.  Talked with Boxer’s staff, who suggested
they talk with us.  Didn’t want our OW requirements to conflict with
OSW’s requirements

Jon Scholl:	Have a poultry petition – about 2 years ago seeking an
exemption for our release reporting under CERCLA for livestock
operations.  EPA has been working on a proposal at OMB now to give an
exemption for air reporting requirements under CERCLA.

NCBA has also asked for clarification in this too.  EPA isn’t seeing a
scenario where there is an emergency release to air to require an
emergency response.  So there would be some merit in providing such a
reporting relief.  

We can conceive that there may be emergency situations for releases to
water where a quick emergency response would be protective to the
environment.

Ben:	OSW has not exercised that authority to date.  So it makes it hard
to do an exemption from that authority before we’ve even used it yet. 

Have been petitioned by Oklahoma Attorney General alleging violations of
CERCLA from Arkansas.  OW’s focus is now on finalizing the CAFO Rule. 
It has no relation to CERCLA/EPCRA Exemption.  Any specific experiences
that industry has a need for this exemption?

Jon: Plan on proposing air CERCLA rule by the end of the year. Plan to
finalize CAFO rule by end of the year.

