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EPA Proposed Rule for CAFO Information Reporting Falls Far Short

November 4, 2011

In October, EPA issued a proposed rule for obtaining information from Concentrated Animal Feeding Operations (CAFOs) under Section 308 of the Clean Water Act.  This purposed rule exempts critical information from CAFO reporting requirements, which leaves huge gaps in EPA’s ability to regulate CAFO waste effectively.

The proposed rule is required by a settlement between EPA and environmental plaintiffs in the case National Pork Producers Council v. EPA.  In that case, both environmental group plaintiffs and agriculture groups promoting CAFOs challenged EPA’s 2008 regulations for CAFO Clean Water Act National Pollutant Elimination System Permits.  The environmental plaintiffs include the Waterkeeper Alliance, Natural Resources Defense Council, and the Sierra Club.

This proposed CAFO reporting rule is open for public comment through December 20, 2011.  EPA has issued a factsheet with information on submitting comments.

Next Wednesday, November 9, from 1-2:30 pm (ET), EPA will hold a webcast to provide an overview of the proposed rule requirements and answer questions about the proposed rule.  A second webcast is scheduled for Thursday, November 17 from 1-2:30 pm.  You can register for the webcasts at an EPA website.

The environmental groups fought for the proposed rule for CAFO information reporting because the weak 2008 CAFO permit rule did 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.  The biggest flaw 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.   In addition, EPA omitted from the permit controls over land application of heavy metals, antibiotics, pathogens, growth hormones, and other substances commonly found in CAFO waste.

EPA’s proposal for CAFO reporting does little to address these flaws in the CAFO permit rule.  First of all, EPA proposes two alternatives for the scope of the rule.  One option would require all CAFOs to report certain information to EPA, unless states with authorized NPDES programs choose to provide this information on behalf of the CAFOs in their state.

Under the second option, only CAFOs in “focus watersheds” that have water quality concerns already known to be associated with CAFOs would be required to report information to EPA.  This second option is nonsensical – without sufficient information about CAFO activities in watersheds, how is EPA to know whether a watershed is already impaired or likely to become impaired by CAFO waste?

In addition, EPA is proposing to require CAFOs to submit information on only five out of fourteen items addressed in the settlement, including

  • 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.

EPA proposed not to obtain information on the following:

  • Name and address of the owner and operator;
  • If a contract operation, the name of the vertical integrator;
  • Location (longitude and latitude) of the operation;
  • Type and capacity of manure storage;
  • Quantity of manure, process wastewater and litter generated by the CAFO;
  • If the CAFO land applies, whether it implements a nutrient management plan for land application;
  • If the CAFO land applies, whether it employs nutrient management practices and keeps records on site consistent with the CAFO permit regulations;
  • If the CAFO does not land apply, alternative uses of manure, litter, and/or wastewater; and
  • Whether the CAFO transfers manure off-site, and if so, quantity transferred to recipients of transferred manure.

Clean Water Act Section 308 gives the EPA broad authority to seek information from point sources, including CAFOs, about the disposition of waste that can result in water pollution and water quality degradation.  The information omitted by EPA from the proposed reporting rule is the very information needed by communities around the nation to assess the extent to which CAFO waste is contributing to water pollution.

In the preamble to the proposed rule, EPA pays inordinate attention to allowing CAFOs to evoke “confidential business information” to hide the quantity of waste they are generating and to hide how they are disposing of that waste.   But precious little attention is paid to the primary mission of the EPA – the protection of the environment and public health.   With this proposed rule, EPA appears to be deliberately putting blinders on itself and on rural communities to avoid even the possibility of effectively dealing with the water quality problems caused by CAFO waste.

Categories: Conservation, Energy & Environment

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