Second CAFO Environmental Regulatory Exemption Headed for Change?

The focus on CAFOs (Concentrated Animal Feeding Operations) has not dimmed this year.  Recall that in our June 6th update, we mentioned the May 2010 settlement agreement between the Environmental Protection Agency (EPA) and Waterkeepers Alliance, the Sierra Club, and the Natural Resources Defense Council (NRDC v. EPA, 5th Cir., No. 08-61093, 5/25/10).  This settlement will affect CAFOs across the United States.  In this same June 6th update, we mentioned that the EPA had taken enforcement action against six cattle feedlots in Iowa, Kansas, and Nebraska for violations of the Clean Water Act.

Earlier this year in our March 10th update, we pointed to the EPA’s National Enforcement Initiatives for Fiscal Years 2011–2013.  This initiative includes “Preventing Animal Waste from Contaminating Surface and Ground Waters.” 

Since our last update, there have been more actions relating to CAFOs including an Ohio CAFO owner pleading guilty to negligently causing a discharge into a local creek.  Also, on July 9, 2010, EPA Region 5 reported that they ordered a CAFO in Illinois to pay $40,000 for failing to comply with the Clean Water Act.

And more recently, an attempt to eliminate another major environmental regulatory exemption is making news.  The CERCLA (Comprehensive Environmental Response Compensation and Liability Act) exemption and limited EPCRA (Emergency Planning and Community Right to Know Act) applicability was previously resolved in 2008 (see our December 17, 2008 ezine).  Environmental groups (Waterkeeper Alliance, Sierra Club, the Humane Society of the United States, et al.) do not agree with the exemptions and want a previously filed lawsuit to proceed to resolve the dispute over the CERCLA exemption.  The EPA has been attempting to resolve the concerns out of court and on July 7th filed to seek “voluntary remand” of the ruling, but the environmental groups say the EPA has had plenty of time and wants the lawsuit to proceed.  According to a blog post (see “Ag Law” link below) “EPA will ask a federal appeals court to remand its litigated rule exempting concentrated animal feeding operations (CAFOs) from reporting most hazardous air emissions under Superfund and right-to-know laws so it can revise the rule…”  Whether settled in or out of court, it appears that there will be changes in the CERCLA and EPCRA reporting requirements as it relates to CAFOs.

Certainly, there are divergent viewpoints when it comes to modern livestock agriculture.  At a minimum, there appears to more challenges ahead for those involved in livestock agriculture.  These and other actions suggest that a more proactive approach, such as an Environmental Management System, may be part of the solution for livestock agriculture. 

If you have any questions or need assistance with an environmental issues contact Matthew Schroeder, P.E. (mschroeder@dragun.com) or Christopher Paré (cpare@dragun.com) at 248.932.0228.

America’s Animal Factories http://www.nrdc.org/water/pollution/factor/exec.asp

Ag Law Blog Posting http://www.aglaw.blogspot.com/

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