On Wednesday, August 28, five non-profit organizations sued the Environmental Protection Agency (EPA) over its decision to withdraw a proposed rule that would require concentrated animal feeding operations (CAFOs) to report basic information to the Agency.  EPA withdrew the proposed rule in July 2012 amidst strong opposition from several livestock industry trade associations.

EPA proposed the reporting regulation as part of settlement with environmental plaintiffs in the lawsuit National Pork Producers Council v. EPA.  The agency is authorized to collect the information under Section 308 of the Clean Water Act. 

Environmental groups fought for the reporting regulation rule because EPA’s weak 2008 CAFO permit rule does not require all CAFOs to obtain a Clean Water Act permit.  In addition, the CAFO permit rule has large gaps that leave tons of CAFO manure and other waste unregulated.  One of the biggest of many flaws is that waste applied on land that is not under the control of the CAFO operator is not subject to the permit’s nutrient management plan.

EPA’s proposed regulation was already very weak, with EPA proposing to require CAFOs to submit information on only five out of fourteen items addressed in the settlement:

• Type of facility;
• Number and type(s) of animals;
• Whether the CAFO land applies CAFO waste;
• Available acreage for land application; and
• Whether the CAFO has a NPDES permit.

In its July notification, EPA concluded that it could rely on information on CAFOs from the state governments and other sources.  This conclusion, however, is belied by numerous reports and statements from EPA regions and state regulators.

In their Complaint for Injunctive and Declaratory Relief, the Center for Food Safety, Food & Water Watch, Humane Society of the United States, Environmental Integrity Project, and Iowa Citizens for Community Improvement argue that EPA violated the Administrative Procedure Act when it withdrew the proposed rule.  The complaint states:

Despite decades of CAFO regulation under the CWA, EPA, the agency authorized to administer the CWA lacks basic information about the nation’s thousands of CAFOs, such as their location, size, ownership, waste management procedures, history of illegal discharges, or whether they have or require a CWA permit[…]  EPA failed to provide a reasonable explanation for its decision to withdraw the Rule.  Instead, the administrative record in front of EPA at the time of the withdrawal of the Rule directly controverts the agency’s assertion that existing state and federal agency information will provide EPA with the same type of information it would obtain through a CWA § 308 information gathering process.  The record demonstrates that EPA’s current approach will not provide the agency with the information that it needs to properly regulate CAFO pollution as required under the CWA.

If the plaintiffs prevail, EPA would be required to finalize its withdrawn reporting rule within 90 days.