EPA tries to bypass prohibition against requiring NPDES permits for CAFOs.

The EPA has proposed a rule that would require concentrated animal feeding operations (CAFOs) to submit operational information to EPA. The EPA claims that this will allow the Agency to ensure that CAFOs are implementing practices to protect water quality and human health. The proposal is part of a settlement agreement reached with the Natural Resources Defense Council, Waterkeeper Alliance, and the Sierra Club. Under the proposed rule, EPA is co-proposing two regulatory options regarding which CAFOs would be required to submit information to the EPA. One option would require every CAFO to report this information to EPA, unless states with authorized NPDES programs choose to provide this information on behalf of the CAFOs in their state. A second option would require CAFOs in focus watersheds that have water quality concerns associated with CAFOs to report information to EPA.

This proposal follows a now-familiar path whereby the EPA creates rules through settlements with environmental advocacy organizations. Industry interests are usually prohibited under Federal case law from intervening in the lawsuits and are not allowed any voice in countering the terms of the settlement. Only after the settlement is complete and the rules are proposed does industry get an opportunity to lodge comments.

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About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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