Non-Dischargers Would Need to Report
Is it government invasion of personal privacy or the right of the public to know about pollution or potential pollution of surface water? That question has prompted considerable interest in and industry hostility toward what would seem on the surface to be a minimally burdensome proposal affecting owners and operators of concentrated animal feeding operations.
Published October 21, 2010, the proposal contains two regulatory options. Under the first option, all CAFOs nationwide would be required to provide EPA with basic information about the CAFO (e.g., name of owner, location, permitting status, and acres available for land application of manure). The second option would require that the same information be provided by only those CAFOs that are in focus watersheds or those that EPA has identified as having water quality concerns likely associated with CAFOs.
As EPA explains it, the Agency is trying to develop information that is essential to carrying out permitting required by the national pollutant discharge elimination system (NPDES) and to ensure that CAFOs are undertaking appropriate practices to protect water quality. It is less important to get CAFOs to engage in a regulated activity than it is to just get the information, says EPA. Hence, the proposal offers several possible alternatives to CAFOs reporting themselves. These alternatives include obtaining the information from other sources such as the U.S. Department of Agriculture’s Ag Census and state agencies. Should these alternatives be adopted, EPA would require reporting only for CAFOs for which information cannot be obtained from other sources.
But about 90 agricultural organizations from every part of the country have asked EPA to withdraw the proposal. The organizations argue that EPA does not have the authority under the CWA to collect information from CAFOs that are not point sources. The less technical but more emotionally charged objection is that making the location of CAFOs available to the public will expose those facilities to terrorists seeking to contaminate the food supply or animal rights activists who may try to free confined animals, damage equipment, or disrupt operations. Further, state the organizations, farmers and their families often live close to if not on the same property as that occupied by a CAFO. In such cases, these families would also be subject to the dangerous intentions of intruders.
No CAFO Inventory
The proposal grew out of several developments. The Agency notes that in contrast to many other regulated industries, EPA does not have facility-specific information for all CAFOs in the U.S. In September 2008, the U.S. Government Accountability Office (GAO) issued a report recommending that EPA complete an effort to develop a national inventory of permitted CAFOs and incorporate appropriate internal controls to ensure the quality of the data. Also in 2008, EPA settled a suit brought by environmental groups in which the Agency agreed to propose a rule that would require CAFOs to provide specific information about their operations to EPA. The Agency committed to taking final action on the proposal by July 13, 2012.
Importantly, the agreement does not hold that EPA must issue a CAFO reporting rule if the Agency determines that such a requirement is not authorized by the Clean Water Act. The Agency notes that the CWA does not in fact require that CAFOs report information. Thus the decision on which action to take rests with EPA’s understanding of its authority under the CWA and whether the Agency believes a reporting rule is or is not necessary to obtain the needed information.
In the proposal, EPA cited its authority under CWA Section 308 to collect information the Administrator may “reasonably require” to carry out the objectives of the Act. Section 308 allows EPA to require that information be provided by point sources, and the section does not extend the Agency’s information collection authority to other entities. In the proposal, EPA notes that in this context CWA Section 502(14) includes the term CAFO in the definition of ‘‘point source, specifically, “any discernible, confined and discrete conveyance, including…any…concentrated animal feeding operation…from which pollutants are or may be discharged.”
The question of which CAFOs are and are not point sources and thus subject to Section 308 is the target of the majority of comments from the agricultural organizations. The commenters include national bodies such as the American Farm Bureau Federation, the National Cattlemen’s Beef Association, the National Milk Producers Federation, and many state organizations.
“Although the federal courts have broadly interpreted EPA’s authority to require information submissions under CWA section 308, this authority is not unlimited and must be grounded in reasonableness,” state the commenters. “Because Section 308 only authorizes the collection of information from point sources, EPA must determine that a CAFO discharges or may discharge pollutants before requiring it to submit information. This limitation precludes the imposition of a regulatory reporting requirement on all CAFOs.”
The commenters provide examples of CAFOs that are not dischargers and therefore not point sources; according to the commenters, the examples come from information developed by EPA itself. For instance, the commenters point to egg laying operations described by EPA in a 2001 proposal as “completely dry waste management systems.” Further, the commenters note manure in “deep pit” swine operations, which never comes into contact with rainfall. In some parts of the country, this manure is applied to cropland, say the organizations, but swine producers in arid regions such as Texas, Oklahoma, and Utah rarely land apply their manure. The commenters go on to point to an EPA record indicating 11 of the top egg producing states reported average annual discharges of zero in eight states and an average of .006 incidents per facility in all 11 states. For swine operations, data from 8 of the top 10 producing states indicate average discharges ranging from zero to .036 per facility.
The agricultural organizations concede that there would likely be no large-scale objection to any effort by EPA to perform one-time surveys of non-discharging operations outside its regulatory jurisdiction to help the Agency develop rules and guidelines. But, they continue, the proposed CAFO reporting rule would place all CAFOs under EPA’s continuing regulatory regime and subject them to administrative, civil, and criminal penalties totally unrelated to unlawful discharges. “Like a construction site before construction activity has begun, some CAFOs, such as a CAFO with a closed manure management system and no land application, are not facilitities from which pollutants are or may be discharged,” say the organizations. “Accordingly EPA cannot use Section 308 to compel the collection of information from such facilities, either individually or by rule.”
Information collected under Section 308 must be made available to the public unless EPA agrees that it relates to methods or processes entitled to protection as trade secrets. Since the location of a CAFO cannot be considered a method or process, it cannot be a trade secret. In other words, EPA would not be able to protect this information from public scrutiny. The consequence, according to the commenters, is that information about the location could increase the risk of CAFOs becoming subject to illegal trespass and property damage. The comment letter goes on to list “direct actions” undertaken by animal rights activists against “the horrors and injustices of factory farming.” These include various acts to “liberate” elk, turkeys, and hens as well as the fire-bombing of a poultry farm in Mexico. Such actions against farmers and other entities are considered terrorism by the Department of Justice, note the commenters, and has led to the Department of Homeland Security establishing a national policy to protect against terrorist attacks on agriculture and food systems. Also, a report by the Congressional Research Service recommends that biosecurity measures to protect against such attacks include limiting visitors to animal production facilities.
The organizations refer to comments on the current proposal filed by the American Veterinary Medical Association, which states that finalization of the proposal would in effect provide a roadmap to the nation’s CAFO’s and undermine efforts by DHS, the FBI, the Department of Agriculture, the Food and Drug Administration, farmers, food processors, and other stakeholders.
Further, public access to CAFO addresses would also violate the privacy of the people and families who live at these locations, assert the organizations, which point to legal opinions stating that information about a business may also be information about an individual. The comment letter points to the Food Security Act of 1985, wherein Congress prohibited any person from using data collected by USDA for a purpose other than the development or reporting of aggregate data in a manner that protects the identity of the person who supplied the information.
“EPA should not undermine Congress’ intent to protect information about individual farmers by releasing the same type of information that Congress has expressly prohibited USDA from releasing,” say the organizations.
Regarding Option 2 – requiring reporting only from CAFOs in watersheds with water quality problems – the commenters do not believe that EPA needs to know the location of individual CAFOS. They state that EPA can use information available from state water quality reports submitted under CWA Section 305(b) and the identification of impaired waters under CWA Section 303(d) to determine what water bodies are impaired by nutrients. They submit that EPA can then combine this information with information available from USDA on the aggregate number of CAFOs located in each country to identify areas where EPA may wish to work with states, USDA, and other stakeholder to focus outreach and compliance assistance resources. “These activities do not require rulemaking,” state the commenters. “Neither does outreach necessitate the development of a national CAFO inventory that poses security and privacy concerns.”
Finally, the organizations emphasize that if EPA decides to take the path of obtaining information from CAFOs from states, the Agency should first determine if a submission from a state would become public under federal or state freedom of information laws and refrain from collecting any location information that would become public.
The comment letter from the agricultural organizations is available at www.regulations.gov under document EPA-HQ-OW-2011-0188-1230.