Bloomberg BNA: EPA Review Finds ‘Continued Need' For Regulating Concentrated Animal Feedlots
By Amena H. Saiyidi
June 4, 2014

Key Development: The EPA concludes CAFOs need to be regulated and there is no need to revise the rules to minimize impacts to small businesses.

Potential Impact: Small CAFOs will not get any regulatory relief from the EPA.

June 4 (BNA) -- The Environmental Protection Agency concluded June 4 that there is a “continued need” to regulate concentrated animal feeding operations that discharge pollutants.

Moreover, the agency concluded that “revisions to minimize the regulations' impacts on small entities are not warranted at this time.”

The conclusions are the result of a review of the CAFOs regulations performed under Section 610 of the Regulatory Flexibility Act. EPA agreed in October 2012 to carry out the Section 610 review, which requires an agency to evaluate a rule within 10 years of its promulgation to determine whether it has or will have a significant economic impact on a substantial number of small entities (77 Fed. Reg. 44,494;.

The EPA said the purpose of the Section 610 reviews is to “decide whether the agency should continue a rule unchanged, amend it, or withdraw it.”

Items to Be Reviewed

As part of this review, the EPA sought to address:

• whether there is a “continued need” for the CAFO rule;

• the nature of complaints received on this rule;

• the complexity of the rule;

• the extent to which the rule overlaps, duplicates or conflicts with other federal, state or local government rules, and

• the degree to which technology, economic conditions or other factors have changed in the area affected by the rule.

Don Parrish, senior regulatory relations director for the American Farm Bureau Federation, was unfazed by the conclusion reached by the EPA, saying, “It took them a while and no real surprise.”

In Minnesota, the farm bureau has sued the EPA seeking to prevent the agency from re-releasing the names, home addresses, global positioning system coordinates and personal contact information of operators and owners of concentrated animal feeding operations in 29 states and releasing such information in six other states in response to freedom of information requests by environmental groups. The case is ongoing (American Farm Bureau Fed'n v. EPA, N.D. Minn., No. 13-1751, 10/2/13)

Mired in Litigation

The CAFO regulations, which were last updated in 2012, have been mired in litigation since the agency promulgated requirements in 2003 that all CAFOs, regardless of whether they discharge, obtain NPDES permits, according to the EPA.

The EPA said the 2012 rule in question is the result of lawsuits by the livestock industry and the environmental community challenging the original 2003 regulation.

The 2012 rule was issued in response to a 2011 appeals court ruling over another CAFO rule, this one issued in 2008, which said EPA will require NPDES permits for CAFOs that discharge or “propose to discharge” and will require voluntary certification for unpermitted operations (73 Fed. Reg. 70,418).

The U.S. Court of Appeals for the Fifth Circuit ruled in March 2011 that EPA could mandate discharge permits only for operations that actually discharge pollutants (National Pork Producers v. EPA, 635 F.3d 738, 72 ERC 2204, 2011 BL 68765 (5th Cir. 2011);51 DER A-42, 3/16/11)).

EPA responded to the Fifth Circuit's ruling with its 2012 rule, eliminating the requirement that CAFOs that “propose to discharge” must obtain NPDES permits. EPA also removed the voluntary certification provision in the 2008 rule in the latest iteration of the CAFO rule.

Rep. Sam Graves (R-Mo.), chairman of the House Small Business Committee, criticized the EPA's review, saying it was inadequate.

“The EPA's continued track record in complying with the RFA is inconsistent and sorely lacking,” Graves said in a statement to Bloomberg BNA June 4. “It is incumbent upon the agency to adequately analyze the impacts of its proposed rules on small businesses and conduct outreach with those that will be affected. The recent ‘Waters of the U.S.’ proposed rule is the perfect example of the EPA pushing out proposals without doing their homework.”

An environmental advocacy group commented that the agency has never done a good job regulating animal feedlots.

“More than 60 percent of CAFOs remain unregulated, more than any other point source in the country owing to the political pressure exerted by the agriculture lobby,” Scott Edwards, co-director of Food and Water Watch Justice, said in a statement. “The 2003 rules have been watered down so much that the only regulatory burden is faced by people who live near these facilities.”

 

###