Another Stumbling Block for CAFO Regulation

Photo by Ano Lobb. Some rights reserved.

The road to EPA regulation of CAFOs has always been rocky. So maybe it’s no surprise that late last week the EPA published a notice in the Federal Register withdrawing an earlier proposed rule.

The 2011 proposed rule was in part a response to a 2010 settlement between the EPA and the Natural Resources Defense Council, Sierra Club, and Waterkeeper Alliance, and would have required all concentrated animal feeding operations (CAFOs) to report information about their facilities to the EPA.

Specifically, the settlement required that:

“No later than twelve months after the Effective Date of this Agreement, EPA will propose a rule under section 308 of the Clean Water Act, 33 U.S.C. § 1318, to require all owners or operators of CAFOs, as point sources under the Act, regardless of whether they discharge or propose to discharge, to submit information to EPA.”

…and mandated that the EPA to take “final action” by July 13, 2012.

Well, define “final action.” In the recent withdrawal, the EPA points out:

“The settlement agreement does not commit the EPA to any particular final action. The settlement agreement expressly states that nothing in the agreement shall be construed to limit or modify the discretion accorded the EPA by the CWA or by general principles of administrative law. Today’s final action fulfills the Agency’s commitments per the settlement agreement with the petitioners.”

The Federal Register notice goes on to cite the EPA’s “rationale” for withdrawal, citing “duplicate efforts” and the ability to “obtain much of the desired CAFO information from federal agencies, states, and other existing data sources.”

The pork industry, for one, is elated, calling the proposed rule “the result of a sweetheart settlement between EPA and environmentalists that would have provided no public health protections.”

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The EPA’s CAFO Rule History page gives a detailed timeline of the events relating to CAFO rulemaking. You can also see all the public comments on the 2011 proposed rule here.

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