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National Pork Producers Council v. United State Environmental Protection Agency

ELR Citation: 41 ELR 20115
Nos. No. 08-61093, (5th Cir., 03/15/2011)

The Fifth Circuit vacated portions of EPA's 2008 concentrated animal feeding operations (CAFOs) rule. The rule requires CAFOs that propose to discharge to apply for an NPDES permit. But there must be an actual discharge into navigable waters to trigger the CWA's requirements. EPA, therefore, cannot impose a duty to apply for a permit on a CAFO that “proposes to discharge” or on any CAFO before there is an actual discharge. However, it is within EPA's province to impose a duty to apply on CAFOs that are discharging. The court also vacated a portion of the rule that provides that a CAFO can be held liable for failing to apply for a permit. The imposition of “failure to apply” liability is outside the bounds of the CWA’s mandate. But claims challenging provisions of the rule that allow permitting authorities to regulate a permitted CAFO's land application and to include these requirements in a CAFO's NPDES permit were time barred. And the court dismissed petitioners' claims concerning certain EPA guidance letters for lack of jurisdiction.