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Focus on Regulation

EPA Withdraws Proposed NPDES CAFO Reporting Rule

EPA has announced the withdrawal of its proposed National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule that would have imposed significant new and broad information reporting obligations requiring CAFOs nationwide to provide a host of specific business and operational information to EPA. In its July 13, 2012 notice withdrawing the proposed rule, EPA explained that the Agency “believes, at this time, it is more appropriate to obtain CAFO information by working with federal, state, and local partners instead of requiring CAFO information to be submitted pursuant to a rule.”

The withdrawn proposed information reporting rule, which arose directly out of a Settlement Agreement with various environmental groups in recent litigation in the Fifth Circuit involving challenges to EPA’s 2008 CAFO Rule, had proposed two information collection options. Under Option 1, EPA proposed to collect information from all CAFOs nationwide. Under Option 2, the Agency proposed to gather information only from those CAFOs located in “focus watersheds.” Under both options, the proposed rule would have required CAFOs to provide EPA with detailed information including, among other things:

  • identifying business information;
  • the location of production areas;
  • whether the CAFO has NPDES coverage;
  • the specific number and types of animals held in confinement; and
  • the number of acres used for the land application of manure.

In objecting to the proposed rule, a consortium of more than 80 trade associations and industry groups expressed a variety of concerns, including concerns about the release of confidential business information, food and animal safety, and questions about EPA’s legal authority to require the production of such information under CWA Section 308 for certain CAFOs.

Although EPA indicated that the “withdrawal does not preclude the Agency from initiating the same or similar rulemaking at a future date” and that it “may [still] use existing tools, such as site visits and individual information collection requests,” the Agency “has concluded that working with USDA and states, who maintain direct relationships with CAFO owners or operators is an effective approach to obtaining CAFO information that will minimize the burden on states and CAFOs.”