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One constant for close to a decade has been the Environmental Protection Agency’s focus on expanding regulatory requirements for Confined Animal Feeding Operations. However, in a surprising move on July 13, EPA announced it would not pursue a rule that would allow it to collect information from CAFOs. So what’s this about?
EPA’s court settlement with environmental groups
Part of the backdrop is an earlier EPA court settlement with environmental groups, who had sued EPA for allowing CAFOs to self-determine their need for a permit in the National Pollutant Discharge Elimination System. A major component of the settlement was a requirement for EPA to collect information from CAFOs under authority outlined in Section 308 of the Clean Water Act. In short, it provides EPA the authority to require all dischargers to monitor, sample, keep records, provide reports, install equipment and provide other information.
Subsequently, in October 2011, EPA proposed a rule to collect information from every CAFO in the nation regardless of whether they discharged pollutants. The rule would have required CAFOs to provide detailed location information and farm demographics for virtually every family farm engaged in the production of commercial poultry and egg products in the U.S.
Information collected would have determined categories of operation
EPA’s rationale for collecting the information was to improve its ability to protect water quality by addressing water quality issues associated with the discharge of manure pollutants from CAFOs. However, EPA’s fact sheet failed to explain a requirement outlined in the settlement agreement that stipulated the information collected may be used to establish “categories of operations” that occur on facilities. Presumably EPA would use these “categories of operations” to make a determination that a CAFO “proposes to discharge,” wording used in the CAFO rule at that time which required a facility to obtain an NPDES permit.
It’s clear the agency’s intent was to use the Information Collection Rule as a mechanism to assign a “duty to apply” responsibility to CAFOs that do not hold a NPDES permit. Subsequently, this “duty to apply” was again rejected by a federal court. A ruling from the Fifth Circuit Court in March 2011 reiterated the fact that EPA lacked the statutory authority to regulate “proposed discharges.”
Has EPA changed regulatory philosophy after court rulings?
EPA’s decision on the Information Collection Rule makes one wonder: Have the last two court rulings that vacated the “duty to apply” requirement for anything other than an actual discharge introduced a philosophical change to EPA’s regulatory mindset for CAFOs? Probably not, considering the agency that signaled it has the option to revisit the rule if efforts to collect information from existing sources are not successful. An account of the record suggests there is a better chance this is merely a timeout until November 6.
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