EPA Plans Review of CAFO Regulations To Assess Impact on Small Businesses

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The Environmental Protection Agency plans to review Clean Water Act regulations on concentrated animal feeding operations to determine whether the rules should be retained, amended, or withdrawn if they significantly affect small businesses.

In a notice scheduled for Oct. 31 publication, EPA said it would review the 2012 regulation, which clarifies that only those concentrated animal feeding operations that discharge are required to obtain National Pollutant Discharge Elimination System permits (77 Fed. Reg. 44,494; 51 DEN A-15, 3/16/11145 DEN A-8, 7/30/12).

EPA will review the CAFO regulations along with two other Clean Air Act rules under Section 610 of the Regulatory Flexibility Act (see related story).

Section 610 requires that an agency review a rule within 10 years of its promulgation to determine whether it has or will have a significant economic impact on a substantial number of small entities.

EPA said the purpose of the Section 610 reviews is to “decide whether the agency should continue a rule unchanged, amend it, or withdraw it.”

The agency will seek comments until Dec. 30 on this review.

Specifically, EPA is seeking comment on:

• whether there is a “continued need” for the CAFO rule;

• the nature of complaints received on this rule;

• the complexity of the rule;

• the extent to which the rule overlaps, duplicates, or conflicts with other federal, state, or local government rules; and

• the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.

Regulations in Court Since 2003

The CAFO regulations have been mired in litigation since the agency promulgated requirements in 2003 that all CAFOs, regardless of whether they discharge, obtain NPDES permits, according to the Oct. 31 notice.

The 2012 rule in question is the result of lawsuits the original 2003 rule has faced from the livestock industry and the environmental community, according to EPA.

The 2012 rule was issued in response to a 2011 appeals court ruling over the 2008 rule, which said EPA will require NPDES permits for CAFOs that discharge or “propose to discharge” and will require voluntary certification for unpermitted operations (73 Fed. Reg. 70,418).

The U.S. Court of Appeals for the Fifth Circuit ruled in March 2011 that EPA could mandate discharge permits only for operations that discharge pollutants (National Pork Producers v. EPA, 635 F.3d 738, 756 (5th Cir. 2011); 51 DEN A-15, 3/16/11).

EPA responded to the Fifth Circuit's ruling with its 2012 rule, eliminating the requirement that CAFOs that “propose to discharge” must obtain NPDES permits. EPA also removed the voluntary certification provision in the 2008 rule in the latest iteration of the CAFO rule.

EPA now wants to know whether the 2012 rule will affect small businesses. It is asking and encouraging small businesses to provide comments on the need to change these rules, and in particular, how the rules could be clearer or more effective, or if there is need to remove conflicting or overlapping requirements with other federal or state regulations.

EPA will accept comments identified by Docket ID No. EPA-HQ-OW-2012-0813 on http://www.regulations.gov for 60 days following the publication of this notice in the Federal Register.

By Amena H. Saiyid  

For more information about EPA's review of CAFO regulations, contact Hema Subramanian in EPA's Office of Wastewater Management at (202) 564-5041 or subramanian.hema@epa.gov.

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