The U.S. Environmental Protection Agency and environmental groups reached a settlement Tuesday on a lawsuit that challenges Clean Water Act permitting regulations for concentrated animal feeding operations (CAFOs). The new regulation will imposes greater information gathering from CAFOs, including how they dispose of manure and other byproducts.
Originally issued in 2008, the CAFO Rule sets a zero-discharge standard for manure from CAFOs getting into waterways. Imposed penalties start at $37,500 a day on operations with discharges. Although the CAFO Rule brought large livestock operations fully under the Clean Water Act, CAFOs could still operate without a federal permit – and not be penalized – as long as there were no discharges. Last week’s settlement requires additional information to be gathered to determine if a CAFO is discharging and imposing more CAFOs to gain permits.
In the settlement deal, EPA agreed to:
- Issue guidance by May 28, 2010, for what constitutes a “proposal to discharge” by a CAFO. Operations presumed to be discharging would need to get permits.
- Issue regulations requiring all CAFOs – even if there is no evidence they are not properly managing their manure – to submit the kind of detailed information that would normally be included in a Clean Water Act CAFO permit.
- Make available to the public all the information that CAFOs are required to submit.
Specifically, the Settlement states:
“EPA shall make publicly available a guidance document designed to assist permitting authorities in implementing the National Pollutant Discharge Elimination System (NPDES) permit regulations and the Effluent Limitations Guidelines and Standards for [CAFOs] by specifying the kinds of operations and factual circumstances that EPA anticipates may trigger the duty to apply for permits as discharging or proposing to discharge”
Frustration and controversy from the agriculture industry meet this settlement ruling. “This agreement sets the stage for new Clean Water Act permitting measures that will add to producers’ costs, drive more farmers out of business, increase concentration in livestock production to comply and hurt rural economies,” said Randy Spronk, a Minnesota pork producer who heads National Pork Producers Council’s (NPPC) environmental committee. “And the measures will do nothing really to improve water quality.
“Additionally, the settlement was negotiated in private and without consultation or input from the regulated farming community,” Spronk said. “This flies in the face of the Obama administration’s pledges to operate government more transparently. And, in this economy, the administration should be enacting measures that create jobs, not implementing regulations that put American farmers out of business.”
Environmentalists say the guidance is expected to exploit language in the 2005 ruling — Waterkeeper Alliance v. EPA — which generally barred the agency from assuming CAFOs discharge but opened the door in a footnote to the agency creating a presumption that large CAFOs “actually” discharge and must therefore seek permits.
EPA is arguing in pending industry litigation in the 5th Circuit over the agency’s 2008 CAFO rule, National Pork Producers Council, et al. v. EPA, et al., that courts have granted agencies deference when making regulatory presumptions that, in this case, would require CAFOs to seek a permit. “An agency need only articulate a rational basis for a regulatory presumption,” the agency says in its March 1 brief, citing a 1997 ruling from the D.C. Circuit, Chemical Manufacturers Association v. DOT. The brief generally argues that the livestock industry’s argument in the case is essentially an attempt to avoid regulation.
And in its March 1 brief to the 5th Circuit, the agency argues for such a presumption, at least for enforcement purposes. “Where an unpermitted CAFO actually discharges, the circumstances of the discharge itself may be sufficient to establish a prima facie case that there was something inherent in the design, construction, operation or maintenance of the CAFO which made it inevitable that a discharge of pollutants to waters of the United States would occur,” the brief states.
The settlement in Natural Resources Defense Council, et al. v. EPA also requires EPA for the first time to collect a slew of information from the livestock industry, which activists say is designed to help the agency greatly expand the universe of permitted CAFOs. The settlement requires that EPA, within two years, “take final action” on a rule “to require all owners or operators of CAFOs, as point sources under the [Clean Water] Act, regardless of whether they discharge or propose to discharge, to submit information to EPA.”
The agency will require CAFOs to submit the coordinates of a facility’s location; the number and types of animals; the type and capacity of manure storage; the quantity of manure produced; information about use of the manure, particularly land application; and whether they have applied for a NPDES permit, among other things.
One source comments that the information which EPA collects could also help strengthen the agency’s case for the upcoming guidance. “What the settlement provides for is a significant collection of information that I think will even strengthen the record about [CAFOs’ discharges],” the source says.
The settlement is the latest EPA effort to regulate more CAFOs. The EPA and the environmental groups want all CAFOs required to file permits comments an industry source. The new settlement is facing a great deal of frustration from the agriculture industry it is trying to control. The American Farm Bureau Federation and livestock groups have been challenging the CAFO Rule, yet were excluded from the recent litigation. Frustrated, these same industry affiliates are sure to take an active role fighting for livestock producers’ rights despite the recent settlement.