The Honorable Douglas Johnston State Representative, 92nd District State Capitol, Room 284-W Topeka, Kansas 66612
Dear Representative Johnston:
You have requested our opinion concerning several issues relating to the environmental aspects of animal production facilities. You state that your questions have arisen as a result of the construction of animal production facilities throughout the State of Kansas.
You initially ask whether the provisions of a National Pollutant Discharge Elimination System permit are enforceable separately from a state's requirements for a water pollution control permit. The State of Kansas administers the NPDES permit program under the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act,
Therefore, a permit which authorizes discharges of sewage to groundwater is issued pursuant to State requirements, rather than federal law, and would only be enforceable by the State of Kansas. See K.S.A. 1997 Supp.
You next ask what the word "prevent" means as it is used in NPDES permits issued to the operators of confined animal feeding operations. The Kansas Agricultural and Related Waste Control Permit and National Pollution Discharge Elimination System Permit issued by KDHE require that "the water pollution control facilities shall be operated and maintained to prevent the discharge of water pollutants into the waters of the State," and "that practices and procedures employed to apply livestock or related agricultural wastes, waste waters, and runoff upon agricultural land shall be prudently conducted to prevent water pollution." The permits also provide that "[l]ivestock wastes (both liquid and solid) shall be applied to land using rates and methods that prevent surface runoff of pollutants and leaching of pollutants to groundwater."
We could find no definition of "prevent" in any of the applicable state or federal laws or regulations. In determining the meaning of words used in a statute, it is presumed that the Legislature intended to use words in their ordinary and common sense. Chavez v. Markham,
Your next two questions are whether the Kansas Legislature could require KDHE to perform testing on the wastewater lagoons of privately-owned confined animal feeding operations and to study the cumulative environmental impacts resulting from confined animal feeding operations. These questions may raise Constitutional issues concerning separation of powers granted to the Legislature and to the executive branch of government, and issues concerning entry by the government onto private property. While there is no express provision in the Kansas Constitution mandating a separation of powers, the Kansas Supreme Court has found the doctrine to be implied in the organization of the state government into the executive, legislative and judicial branches. Parcell v. State of Kansas,
One of the issues raised by your questions is whether, in requiring KDHE to perform certain tasks, the Legislature would be exerting power over the agency to the extent the Legislature usurps the agency's constitutional power to enforce the laws of the State. Kan. Const., Art.
Another potential issue raised by these questions is whether KDHE would need to enter onto private property to conduct the testing and study you reference and, if so, whether they have authority to do so. A statute which requires KDHE to conduct testing should authorize KDHE officials to enter onto private property, if necessary, to conduct the testing. Such authorization should meet the constitutional requirements for governmental entry onto privately-owned property. See City of Overland Park v. Niewald,
The next question you ask is whether K.S.A. 1997 Supp.
"Whenever the secretary of health and environment or the secretary's duly authorized agents find that the soil or waters of the state are not being protected from pollution resulting from underground storage reservoirs of hydrocarbons and liquid petroleum gas or that storage or disposal of salt water not regulated by the state corporation commission or refuse in any surface pond is causing or is likely to cause pollution of soil or waters of the state, the secretary or the secretary's duly authorized agents shall issue an order prohibiting such underground storage, reservoir or surface pond. Any person aggrieved by such order may within 15 days of service of the order request in writing a hearing on the order." (Emphasis added.)
"Refuse" is not defined in the statute, however, when read as a whole K.S.A. 1997 Supp.
"[A]ny substance that contains any of the waste products or excrementitious or other discharges from the bodies of human beings or animals, or chemical or other wastes from domestic, manufacturing or other forms of industry."
Even if animal wastes were considered "refuse" under K.S.A. 1997 Supp.
Your next question is what agency has either the authority or duty to act, and what action may or must be taken when evidence arises that there is contamination of soil or water caused by a confined animal feeding operation. The Secretary of KDHE is required to investigate a public water supply system whenever a complaint is made to the Secretary by any city, local health officer, or county board of health concerning the sanitary quality of any water supplied to the public, and the Secretary may investigate a public water supply system if the Secretary has reason to believe that the system is being operated in violation of an applicable state law or rule and regulation of the Secretary or that the water is polluted. K.S.A. 1997 Supp.
Upon written order of the Director of the Division of Environment that a violation of any sewage discharge permit, regulation or order of the Secretary has occurred, the Director may impose a civil penalty in an amount of up to $10,000 for every violation. K.S.A.
K.S.A.
In addition to the remedies under the Water Supply and Sewage Act, K.S.A.
Your next question is "[i]f a confined animal feeding facility is discharging in contravention to its NPDES permit, do officials with the KDHE have an obligation to apply the provisions of the Clean Water Act, particularly with regard to the delegation agreement between KDHE and the EPA?" We are unable to respond to the portion of this question concerning terms of the delegation agreement between KDHE and the EPA because that agreement is not before us. Because KDHE has an approved state NPDES program, it can enforce both federal and State requirements of NPDES permits. In State of California v. Department of Navy,
"The Act creates a cooperative federal-state scheme for the control of water pollution,' Shell Oil Co. v. Train,
585 F.2d 408 ,409 (9th Cir. 1978), including the issuance and enforcement of discharge permits. Although the Administrator [of EPA] has initial authority to issue permits, the Act provides that each state may establish and administer its own permit program.33 U.S.C. § 1342 (a), (b). The Administrator must approve a state program unless he or she determines that the program does not provide the state with adequate authority' to enforce the Act.33 U.S.C. § 1342 (b)."Once a state program is approved, the Administrator must suspend the issuance of' any federal permit covering the navigable waters subject to the state program.
33 U.S.C. § 1342 (c) (1). Although enforcement authority then rests primarily with the state, the Administrator retains certain oversight authority over the state program. The Administrator may veto particular permits issued by the state, and may withdraw approval of the entire state program if he or she determines that the program is not being administered in accordance with the requirements of Act.33 U.S.C. § 1342 (c) (3), (d) (2). Furthermore, if the state fails to take appropriate enforcement action' against a polluter who violates the state-issued permit, the Administrator must either issue an order requiring compliance with the permit or bring a civil action against the polluter.33 U.S.C. § 1319 (a) (1). As the Ninth Circuit has noted, however, [d]espite this residual federal supervisory responsibility the federal-state relationship established under33 U.S.C. § 1342 is "a system for the mandatory approval of a conforming State program and the consequent suspension of the federal program [which] creates a separate and independent State authority to administer the NPDES pollution controls.'" Shell Oil,585 F.2d at 410 , quoting Mianus River Preservation Committee v. Administrator, EPA,541 F.2d 899 ,905 (2nd Cir. 1976).Thus, although the Act grants the Administrator the authority the first instance to issue NPDES permits, Congress clearly intended that the states would eventually assume the major role in the operation of the NPDES program.' Shell Oil, 585 F.2d at 410."
When the provisions of an NPDES permit are violated, KDHE must exercise the remedies set forth in the Kansas NPDES permit program approved by EPA under
Your final question is whether the sewage seeping from wastewater lagoons of confined animal feeding operations meets the definition of "solid waste" in the Solid Waste Disposal Act,
"[A]ny garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities. . . ."
42 U.S.C. § 6903 (27).
It would appear that sewage seeping from wastewater lagoons of confined animal feeding operations falls within the definition of "solid waste." However, the Solid Waste Disposal Act also states:
"(a) Nothing in this Act [
42 U.S.C.S §§ 6901 et seq.] shall be construed to apply to (or authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to the Federal Water Pollution Control Act (33 U.S.C. § 1151 and following), . . . except to the extent that such application is not inconsistent with the requirements of such Act."(b) (1) The Administrator [of EPA] shall integrate all provisions of this Act [41 U.S.C.S §§ 6901 et seq.] for purposes of administration and enforcement and shall avoid duplication, to the maximum extent practicable, with the appropriate provisions of the . . . Federal Water Pollution Control Act . . . and such other Acts of Congress as grant regulatory authority to the Administrator. Such integration shall be effected only to the extent that it can be done in a manner consistent with the goals and policies expressed in this Act [
42 U.S.C. § 6901 et seq.] and in the other acts referred to in this subsection."42 U.S.C. § 6905 (a), (b)(1).
In considering the issue of whether certain actions were controlled by the federal Solid Waste Disposal Act or another act administered by the EPA, one Court explained that Section 6905 "creates no rights in defendants to resist regulation; rather it constitutes an exhortation to the EPA to avoid unnecessary and overlapping regulation. Thus, the decision of when to regulate and under which statutes to regulate is left to the EPA's discretion." U.S. v. Vineland Chemical Co., Inc.,
Nevertheless, wastewater treatment lagoons of confined animal feeding operations operating under an NPDES permit are clearly precluded from regulation under the federal Solid Waste Disposal Act if such regulation is inconsistent with the requirements of the Federal Water Pollution Control Act.
In conclusion, the State of Kansas enforces both federal and State requirements of NPDES permits and exercises the remedies for permit violations set forth in the State program approved by the EPA. Wastewater treatment lagoons of confined animal feeding operations operating under an NPDES permit are precluded from regulation under the federal Solid Waste Disposal Act to the extent such regulation is inconsistent with the requirements of the Federal Water Pollution Control Act. The Kansas Legislature would need to enact a statute in order to require KDHE to conduct certain tests on wastewater lagoons of privately-owned confined animal feeding operations. State and county officials have certain statutory duties and powers as discussed above with respect to the contamination of soil or water caused by a confined animal feeding operation.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Donna M. Voth Assistant Attorney General
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