NCC AND USPOULTRY CHALLENGE EPA’S CAFO REGULATIONS AND GUIDANCE

Monday, April 6, 2009

The National Chicken Council and U.S. Poultry & Egg Association have filed suit in the Fifth U.S. Circuit Court of Appeals in New Orleans to challenge certain aspects of the Environmental Protection Agency’s (EPA) new regulation on water pollution discharges from so-called confined animal feeding operations, or CAFO’s.

The new regulation was issued in response to the industry’s victory in the Second U.S. Circuit Court of Appeals in New York in 2005, in which the court said EPA could not require growers to apply for permits merely because they have a “potential to discharge” pollutants to the waters of the United States. EPA has replaced that portion of the rule with a new provision that would require permits where there is a “proposal to discharge.” The lawsuit will challenge the new requirement as not conforming to the Second Circuit’s ruling.

In addition, the lawsuit challenges recent guidance documents, issued by EPA in the form of letters, that interpret the CAFO regulation. The letters essentially say a grower has a “proposal to discharge,” and therefore must apply for a permit, if poultry housing has a ventilation fan that may potentially exhaust dust or other substances on the ground where rain water might wash them into a ditch leading to surface waters. NCC and USPOULTRY will argue that Congress did not intend to regulate these normal agricultural practices when it enacted the Clean Water Act.

The National Chicken Council represents integrated chicken producer-processors, the companies that produce and process chickens. Member companies of NCC account for approximately 95 percent of the chicken sold in the United States.

The U.S. Poultry & Egg Association, the “All Feather” association, is a national organization that represents its members in all aspects of poultry and eggs on both a national and an international level. The association’s focus is research, education, communications and technical services. USPOULTRY serves producers of broilers, turkeys, eggs and breeding stock, as well as allied companies.

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