When the EPA delegated NPDES general permit authority for concentrated animal feeding operations to NC's Environmental Management Commission, can NC use its own stricter 'storm event more severe than the 25-year, 24-hour storm' standard from § 143-215.10C(b), can DENR co-permit swine integrators, and can DENR include bypass-and-upset provisions and other more-stringent conditions?
Plain-English summary
In October 2001 the EPA approved a modification of NC's NPDES program to let the NC Environmental Management Commission issue general permits for animal feeding operations. DENR was drafting general NPDES permits for CAFOs (especially swine) and asked the AG four questions about how state law interacts with federal CWA requirements.
Senior Deputy AG James Gulick, Special Deputy Kathryn Cooper, and Assistant AG Anita LeVeaux gave detailed answers:
First issue: NC's "more severe than 25-year, 24-hour storm" standard. § 143-215.10C(b) allows pollution from animal waste systems only when caused by rainfall from a storm event "more severe than the 25-year, 24-hour storm." EPA's regulations under 40 C.F.R. Part 412 use "catastrophic event" (equivalent to a 25-year, 24-hour storm) and "chronic rainfall" exemptions. The AG concluded NC's standard is more stringent: "more severe than" means "greater than," and any pollution event tied to a storm that didn't exceed the 25-year, 24-hour threshold is not excused. NC's standard uses an objective probability measure (the 25-year recurrence interval) rather than the subjective "chronic" or "catastrophic" categories. A storm longer than 24 hours can still qualify as "a storm event" if total rainfall exceeds the probability threshold and intervals without rain do not exceed 10 hours (DENR's existing BPJ guidance). The draft permit language tying excuses to EPA effluent guidelines (40 C.F.R. Part 412) would import federal "chronic" and "catastrophic" exceptions and should be revised. The AG suggested alternative language.
Second issue: co-permitting integrators. Swine integrators (companies that own the animals raised on contract farms and dictate management standards) often have substantial operational control over CAFOs. The AG concluded DENR has existing authority under § 143-215.10C(a) and § 143-215.10H to require integrators to be co-permittees when their control rises to the level of "constructing or operating" the waste management system. Ownership of animals plus dictating feed and medical treatment plus mandating production standards are indicia of control. The opinion did not establish a bright line; instead, it said DENR can develop criteria and analyze case by case.
Third issue: bypass and upset provisions. Federal rules (40 C.F.R. § 122.41(m) and (n)) contain model bypass and upset provisions for NPDES permits. Neither federal nor state law mandates inclusion. NC has historically included them in NPDES permits for other industries. The AG concluded DENR has discretion to include them but the draft language at Part VIII(G) and (H) of the October 12, 2001 draft conflicts with § 143-215.10C(b) by potentially excusing pollutant discharges in circumstances other than storms more severe than the 25-year, 24-hour event. The language can be revised to maintain compliance with state law.
Fourth issue: more-stringent or broader-scope state conditions. CWA § 510 (33 U.S.C. § 1370) and the implementing regulations (40 C.F.R. § 123.1(i), § 131.4) authorize states to adopt standards more stringent than federal minimums. Once approved by EPA, those provisions are federally enforceable. Conditions "broader in scope" than federal requirements are not part of the federally approved program and may not be federally enforceable (40 C.F.R. § 123.1(i)(2)). Citizen-suit enforcement under CWA § 505 is unsettled: the 9th Circuit (Northwest Environmental Advocates v. Portland) allows citizens to enforce all permit conditions, while the 2d Circuit (Atlantic States Legal Foundation v. Eastman Kodak Co.) holds that broader-than-federal state provisions are unenforceable through citizen suits. The AG recommended that DENR not try to control by permit language which conditions are federally or third-party enforceable.
Currency note
This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. EPA's CAFO regulatory framework has been substantially revised since 2002 (the 2003 and 2008 CAFO rules, subsequent litigation in Waterkeeper Alliance v. EPA, etc.). NC's animal waste program has been restructured multiple times, including the General Assembly's series of changes following the swine farm moratorium. The citizen-suit enforceability question for state-only provisions remains unsettled in some circuits. Anyone working on a current NPDES general permit for CAFOs should consult current EPA regulations, current NC statutes, and recent Fourth Circuit and EPA Region 4 guidance.
Background and statutory framework
The NPDES permitting framework. The Clean Water Act prohibits discharge of pollutants to navigable waters without an NPDES permit (33 U.S.C. § 1342). EPA delegates the program to states that meet federal minimum standards. NC's program is delegated, meaning the state EMC issues permits but EPA retains oversight authority.
CAFOs and the 25-year, 24-hour storm. Animal feeding operations were historically exempted from NPDES permits if they only discharged during a 25-year, 24-hour storm event (a precipitation event with 4% annual probability). The federal rules permitted ongoing discharges from properly designed CAFOs only in those rare storm events. NC's § 143-215.10C(b) borrowed the concept but used "more severe than" rather than "equivalent to," intending a stricter standard.
The integrator question in NC's swine industry. NC has a large swine industry built on the integrator-grower model: an integrator (Smithfield, Murphy Family Farms, etc.) owns the animals, supplies feed and veterinary care, and dictates production standards. The grower owns the land and barns and takes the resulting waste. Historically only the grower was the permittee. The AG opinion confirmed that when an integrator exercises sufficient operational control, it can be required as a co-permittee. This addressed a longstanding concern that integrators were structurally insulated from environmental responsibility for waste their model produces.
Bypass and upset provisions. "Bypass" allows intentional non-compliant discharges in exigent circumstances (e.g., to prevent more catastrophic failure). "Upset" provides an affirmative defense for unintentional non-compliant discharges. Both are standard NPDES features in many states, but their inclusion is at state discretion.
Citizen-suit enforcement. CWA § 505 lets citizens sue to enforce "effluent standards or limitations," which the statute defines to include "a permit or condition thereof issued under section 1342." The 9th Circuit reads this broadly; the 2d Circuit reads it narrowly to exclude broader-than-federal state conditions. NC sits in the 4th Circuit; the question was open in NC.
Common questions
Q: Does this opinion mean NC can never authorize a CAFO discharge during a small storm?
A: Correct: under § 143-215.10C(b), only storms more severe than the 25-year, 24-hour event qualify for the narrow excusal. Smaller storms or chronic conditions do not. CAFOs must be designed and operated to contain waste through the 25-year, 24-hour event. The federal "chronic rainfall" and "catastrophic event" categories that allow some additional flexibility do not apply in NC.
Q: Can an integrator avoid co-permittee status by structuring contracts differently?
A: Possibly, but the AG opinion focuses on substantive operational control rather than contract form. Owning the animals, dictating feed and medical care, and setting production standards together suggest co-permittee status. An integrator that backed off all operational control would be a less compelling co-permittee candidate, but doing so might undermine the integrator-grower business model.
Q: If a citizen sues to enforce a state-only condition, what happens?
A: The court would have to decide which circuit's view to apply. The 4th Circuit has not definitively ruled on the precise question. Citizen plaintiffs would have to argue Northwest Environmental Advocates is more persuasive; defendants would invoke Atlantic States Legal Foundation. The unsettled state of the law was itself important guidance for DENR.
Q: What about bypass and upset in CAFO permits specifically?
A: They can be included if they do not authorize discharges outside § 143-215.10C(b)'s narrow excusal. The opinion suggests that improper-design language from bypass/upset provisions is useful to clarify that pollution caused by inadequate design is not excused even in extreme storms.
Citations
Statutes and regulations:
- N.C.G.S. § 143-212(4), (6); § 143-214.1(b)(1); §§ 143-215.1(a)(12), (b)(2), (b)(4); §§ 143-215.10A-M; § 143-215.10C(a)-(b); § 143-215.10H(a)(3); § 143-215.11; § 143-215.211
- 33 U.S.C. §§ 1251-1387 (Clean Water Act); § 1311; § 1342; § 1365; § 1370(1)
- 40 C.F.R. § 122.41(m), (n); § 123.1(i); § 123.25; § 131.4; Part 122; Part 412
- 15A NCAC 2H .0100
Cases:
- Northwest Environmental Advocates v. Portland, 56 F.3d 979 (9th Cir. 1995), cert. denied, 518 U.S. 1018 (1996) (citizen suits can enforce all permit conditions)
- Atlantic States Legal Foundation v. Eastman Kodak Co., 12 F.3d 353 (2d Cir. 1993), cert. denied, 513 U.S. 811 (1994) (state-only conditions broader than CWA not enforceable through citizen suit)
Source
Original opinion text
Full opinion text unavailable from the official source. See the linked landing page above for the complete text. The opinion is structured as four issues, each with detailed legal analysis. Key passages include:
On the "more severe than" standard (First Issue): "In our opinion, the General Assembly intentionally crafted the language in N.C.G.S. § 143-215.10C(b) to insure that it would not only be consistent with, but more stringent than, the federal NPDES requirements for CAFOs. . . . It is axiomatic that a storm event in which more rain falls within a 24-hour period than during the 25-year 24-hour storm is more severe than the 25-year, 24-hour storm. On the other hand, if no more rain occurs during such a storm event than during the 25-year, 24-hour storm, then it cannot be more severe."
On integrator co-permitting (Second Issue): "In our opinion, any entity, including an integrator, that exercises substantial operational control over CAFOs and the owner/operator of the animal operation such that it can fairly be determined to be 'constructing or operating' an animal waste management system, can be included as a required co-permittee on the NPDES general CAFO permit. DENR has the existing authority to require co-permitting of integrators in the event that their operational control over is clearly established. . . . Indicia of control over an animal feeding operation would include owning the animals, providing or mandating specific food for the animals and providing for the animals' medical treatment."
On bypass and upset (Third Issue): "We have found nothing in either federal or State law that mandates their inclusion in an NPDES permit. . . . In the case of CAFOs, however, the specific language of the Upset and Bypass provisions in the draft permit appears to be inconsistent with the specific prohibition of N.C.G.S. § 143-215.10C(b), to the extent it would permit or excuse discharge of pollutants to waters of the State under some circumstances other than 'because of rainfall from a storm event more severe than the 25-year, 24-hour storm.' This deficiency is easily corrected, however . . . ."
On more-stringent and broader-scope state conditions (Fourth Issue): "Once approved by EPA, the provisions of the NPDES permit, including those that are more stringent than the federal minimum standards, are federally enforceable. . . . To the extent that State conditions are broader in scope of coverage than those required by the CWA they are not viewed by EPA as 'implementing' the provisions of that Act and may not be treated as enforceable by the federal government under the Act. . . . Case authorities are divided on whether State conditions more stringent, or broader in scope, than those mandated by federal law are enforceable through the CWA, 33 USC § 1365 citizen suit provision."
Sincerely,
James C. Gulick
Senior Deputy Attorney General
Kathryn Jones Cooper
Special Deputy Attorney General
Anita LeVeaux
Assistant Attorney General