CAFO Rule - Environmental Groups Identify Their Legal Claims

The parties litigating EPA's revised CAFO regulations filed papers in May identifying the claims that they intend to assert. Four environmental groups (so far) have challenged the CAFO rule in court. These related cases, in addition to suits by four industry associations, have been consolidated in the U.S. Court of Appeals for the Second Circuit. Although most of the parties submitted only generalized statements of their claims, the list submitted by the Sierra Club is detailed enough to provide some insight into the regulatory changes the group wants to require.

Sierra Club's filing indicates that it will challenge:

• EPA's recognition of any CAFO land application area runoff as exempt "agricultural storm water discharge";
  
• EPA's failure to require sufficient restrictions on land application of CAFO waste in watersheds where water quality is impaired;
  
• EPA's failure to require agency approval of, and public review and comment on, each CAFO's nutrient management plan;
  
• EPA's decision to allow the use of "general permits" that do not involve public review and comment on each CAFO's permit application;
  
• EPA's elimination of the "co-permitting" and "integrator liability" provisions that were in included in the proposed CAFO rule; and
  
• EPA's failure to adequately protect groundwater, including requirements for groundwater monitoring.

Sierra Club's list also threatens to challenge EPA's identification of the "best available technology economically achievable" and the agency's purported failure to limit metals, pathogens, antibiotics, and other pollutants in CAFO waste.