it appears to be that the governors and EPA have conspired to delete citizens lawsuits concerning sludge from federal
law and let the states violate the CWA. Found this on the Governors Association website
January 25, 2002
January 25, 2002 letter (from Governor Hoeven and Governor Minner) to the US Environmental Protection Agency
(EPA) filing NGA comments in response to an EPA proposal to regulate wastes from farm animal feeding operations.
[excerpts from three paragraph excerpt]
The NODA indicates that EPA is constrained from adopting functionally equivalent state programs by the CWA and EPA
regulations.
the Governors suggest that the citizen suit provision is not required under the law and that EPA has the discretion and
flexibility to allow states to establish functionally equivalent programs that would not provide for citizen suits.
While the implementing regulations found in 40 CFR Part 501 contain extensive public participation provisions, including
the right of citizens to intervene in state civil or administrative enforcement actions, they do not require that states allow
citizens to bring their own enforcement action. The CWA citizen suit provisions, found in section 505(a), which authorize
actions for alleged violations of CWA effluent standards and limitations, are not applicable under section 405. States are
issuing sewage sludge disposal permits pursuant to state law and these non-NPDES permits contain state effluent
standards and limitations, not CWA standards and limitations
http://www.nga.org/portal/site/nga/menuitem.cb6e7818b34088d18a278110501010a0/?vgnextoid=c74e9e2f1b091010Vg
nVCM1000001a01010aRCRD
Letter printable version
Concentrated Animal Feeding Operation Proposed Rule
U.S. Environmental Protection Agency
Office of Water
401 M Street, S.W.
Room 611 West Tower
Washington, DC 20460
To Whom It May Concern
[Excerpt]
EPA Discretion
States that have developed innovative functionally equivalent programs have generally engaged in long and difficult
negotiations with stakeholders to design effective and affordable approaches to management of livestock waste.
Notwithstanding these efforts, the NODA [Notice of Data Availability] and EPA would require states to dismantle
successful programs and institute a new regulatory framework, imposing new costs and staff resources, or subject the
regulated community to two redundant permitting programs.
The NODA indicates that EPA is constrained from adopting functionally equivalent state programs by the CWA and EPA
regulations. Specifically, the NODA states that section 402(b) of the CWA, and the corresponding regulations contained
in 40 CFR Part 123, require that all NPDES programs contain five elements: 1) federal enforceability; 2) public
participation; 3) citizen suits; 4) five-year permit terms, and 5) permit conditions and limitations designed to limit
discharges. According to the NODA, in order for a state program to be functionally equivalent, it would have to issue
permits that meet all of these elements.
Notwithstanding the assertion in the NODA that section 402(b) sets a statutory floor for NPDES permits that includes
citizen suits, a closer look at section 402(b) and 40 CFR 123 reveals that neither provision mandates citizen suits. In this
regard, the Governors suggest that the citizen suit provision is not required under the law and that EPA has the
discretion and flexibility to allow states to establish functionally equivalent programs that would not provide for citizen
suits.
For example, EPA currently sanctions functionally equivalent programs as part of its sludge management program
promulgated under section 405 of the CWA. Section 405 authorizes states, subject to EPA approval, to operate their
own permit program for disposal of sewage sludge. While the implementing regulations found in 40 CFR Part 501
contain extensive public participation provisions, including the right of citizens to intervene in state civil or administrative
enforcement actions, they do not require that states allow citizens to bring their own enforcement action. The CWA
citizen suit provisions, found in section 505(a), which authorize actions for alleged violations of CWA effluent standards
and limitations, are not applicable under section 405. States are issuing sewage sludge disposal permits pursuant to
state law and these non-NPDES permits contain state effluent standards and limitations, not CWA standards and
limitations. Such an approach may be a useful model to examine in the context of AFOs.
Governor John Hoeven
Chair
Natural Resources Committee
Governor Ruth Ann Minner
Vice Chair
Natural Resources Committee