EPA seeks comments on regulatory impacts on ‘small-entity’ CAFOs

On Oct. 31, the U.S. Environmental Protection Agency (EPA) announced it is seeking comments concerning regulation of Concentrated Animal Feeding Operations (CAFOs) under the Clean Water Act. The request for comments is in response to requirements of the Regulatory Flexibility Act, which requires that a review on the impacts of regulation, specifically on small business, be conducted by federal agencies following enactment of a regulation.

The CAFO comments are being sought under a broader EPA request that also seeks comments covering reviews of heavy-duty engine and vehicle standards and highway diesel fuel sulfur control requirements; as well as comments on reinforced plastic composites production. The CAFO request is under “IV. Section 610 Review of National Pollutant Discharge Elimination System (NPDES) Permit Regulation and Effluent Limitations Guidelines Standards for Concentrated Animal Feeding Operations (CAFOs).”


 EPA promulgated revised regulations for CAFOs on Feb. 12, 2003, expanding the number of operations  covered by the CAFO regulations, and included requirements to address  the land application of manure from CAFOs. The 2003 CAFO Rule required  all CAFOs to seek NPDES permit coverage. 


The EPA developed a Final Regulatory Flexibility Analysis (FRFA) for the 2003 CAFO Rule. In the 2003 CAFO Rule, the EPA took several steps to minimize its impacts on  small businesses, including regulatory revisions designed to focus on the largest producers, eliminating the ``mixed'' animal calculation for 

operations with more than a single animal type for determining which  AFOs are CAFOs, raising the duck threshold for dry manure handling duck  operations, and adopting a dry-litter chicken threshold higher than 



Subsequently, a series of court decisions based on legal challenges to the rulemaking have limited the requirement for NPDES permit  coverage specifically to CAFOs that discharge. In response to these  court decisions, the EPA made revisions to the CAFO regulations in 2008 and 2012. In promulgating the 2008 

regulatory revision, the EPA certified that the 2008 rule would not  have a significant adverse economic impact on a substantial number of  small entities. In promulgating the 2012 regulatory revision, the 2012  rule was not subject to the RFA because the RFA applies only to rules  subject to notice and comment rulemaking requirements under the  Administrative Procedure Act (APA) or any other statute, and the 2012 rule was not subject to notice and comment requirements. 


Both rules reduced the potential impact of the EPA's CAFO regulations on small entities by reducing the universe of CAFOs that must apply for NPDES permits.


This notice announces that EPA will review this action pursuant to section 610 of the Regulatory Flexibility Act (5 U.S.C. 610). As part of this review, EPA will consider and solicit comments on  the following factors: (1) The continued need for the rule; (2) the  nature of complaints or comments received concerning the rule; (3) the 

complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other federal, state or local government  rules; and (5) the degree to which the technology, economic conditions or other factors have changed in the area affected by the rule. 


EPA is accepting comments through Dec. 31. In submitting comments, please reference Docket ID number EPA-HQ-OW-2012-0813 and follow the instructions provided in the ADDRESSES section of this document. The results of EPA's review will be summarized in a report and placed in the rulemaking docket referenced above. This docket can be accessed at www.regulations.gov.