The Environmental Protection Agency seems to always have a rule lurking that concerns farmers. But this time around, it seems agriculture finally got a win from EPA’s overarching reach.
Essentially reneging on a sweetheart deal made with environmentalist groups, EPA announced July 13 that it would not be pursuing a proposed rule that would have required Concentrated Animal Feeding Operations (CAFOs) to submit information to the Agency regardless of whether or not they discharge to a water of the United States.
EPA’s proposed Concentrated Animal Feeding Operation (CAFO) Reporting Rule sought to have CAFOs submit to the agency operational information so it could “more effectively carry out its CAFO permitting programs on a national level and ensure that CAFOs are implementing practices to protect water quality and human health.” The information included facility facts, such as contact information, location of a CAFO’s production area, permit status, the number and type of animals confined and the number of acres available for land application of manure.
In announcing the final action, the Agency pointed out that although collecting CAFO information is important, the Agency believes an efficient approach that does not duplicate efforts is the appropriate next step. EPA will collect CAFO information using existing sources of information, including state National Pollutant Discharge Elimination System (NPDES) programs and other programs at the federal, state, and local level to help ensure CAFOs are implementing practices that protect water quality.
EPA heard concerns
For agriculture, the rulemaking promise finally seemed to shed the right light on a situation.
The comment period for the October 21, 2011 proposed rule closed on January 19, 2012 and EPA said it received 1,403 comment letters. EPA said generally state and state association commenters questioned the need for new regulations in light of states already having the information the EPA was seeking by virtue of existing CAFO programs at the state and local level. Industry comments opposed the proposed rule arguing that much of the data had already been submitted to the states and the EPA, and that the information could be collected through means other than a rule.
A joint statement from the National Chicken Council, U.S. Poultry and Egg Assn. and National Turkey Federation said the poultry industry appreciated that the agency heard the concerns voiced by industry during the comment period and accepted the recommendation to collect this information from existing sources.
R.C. Hunt, National Pork Producers Council president and a pork producer from Wilson, N.C. said, “It would have been a duplicative and burdensome paperwork exercise for producers and clearly was an effort to undermine court decisions that said producers who don’t discharge into waterways don’t need a CWA permit.”
EPA stated it would place this information on the agency’s website in an easily searchable database, where the National Cattlemen Beef Association feared extremists could access the information with the intent to do harm to cattle operations or the nation’s food system.
NCBA president J.D. Alexander said NCBA worked with EPA to convey the privacy concerns on behalf of cattlemen and women. On Feb. 3, 2012, NCBA invited EPA to attend its annual convention in Nashville, Tenn., to discuss the proposed rule. Ellen Gilinsky represented EPA at NCBA’s convention, where she acknowledged the industry’s biosecurity and privacy concerns.
The 2011 proposed rule was in response to a settlement agreement reached with environmental petitioners in 2010, which required EPA to take final action by July 13, 2012. In its notice, EPA said the settlement agreement “does not commit the EPA to any particular final action” and the final action “fulfills the Agency’s commitments per the settlement agreement with the petitioners.”
A day before EPA officially announced it was withdrawing the rule, EPA established a memorandum of understanding (MOU) with the Association of the Clean Water Administrators (ACWA) that specifically will assist the Agency in obtaining information about CAFOs. ACWA is an independent, nonpartisan, non-profit corporation of state and interstate water program managers.
The Natural Resources Defense Council helped broker the requirement for a proposed rule in 2010. Jon Devine, senior attorney for NRDC, called the final action a “big disappointment.” He said, “The notice and [MOU] reveals that EPA still says additional information is needed but they’re passing up a more efficient process of directly soliciting information from operators themselves and instead going about it by using a second-hand approach which will result in necessarily inconsistent information.”
The EPA noted that after seeking to obtain the information from existing sources, the agency will re-evaluate whether a rule is needed to collect information about CAFOs. “If the EPA determines that it is necessary to fill in information gaps, the Agency may use existing tools, such as site visits or individual information collection requests, to collect information, and may reconsider whether to propose a rule that obtains information from all CAFO facilities,” the agency said.
Devine said he could not comment as to whether NRDC would take legal steps as a result of EPA’s latest action.