The Office of Management and the Budget (OMB) watered down already weak EPA draft rules to address pollution from factory-style animal farms -- resulting in standards that are more protective of corporate polluters than of public health and the environment. Just before leaving office in 2001, the Clinton administration proposed new standards to regulate factory farms after reaching a legal settlement with the Natural Resources Defense Council (NRDC), which called on EPA to update rules crafted in the 1970s. Under the Bush administration, EPA reworked the Clinton-era proposal, dropping a number of important provisions -- most notably one that would have held corporate livestock owners liable for damage caused by animal waste pollution. These owners often evade culpability by hiring contractors to raise their animals, a loophole that would have been closed by the Clinton proposal. The agency also dropped a requirement that would have forced facilities to monitor groundwater for potential contamination by animal waste, which often seeps into the earth, leaving communities vulnerable to potentially dangerous drinking water supplies. OMB’s Office of Information and Regulatory Affairs (OIRA), which has the authority to review and possibly reject or amend proposed agency regulations, further weakened the standards, broadening a provision that exempts “agricultural storm water discharge” from regulation -- legalizing the discharge of raw sewage, bacteria, and other elements from land where waste has been applied. The office also altered a provision to allow facilities to avoid strict federal standards governing the land application of animal waste -- instead embracing industry’s preferred approach of regulation by state-level authorities. Records indicate that OIRA Administrator John Graham and his staff met with industry representatives interested in the factory farm rules in November of 2001, nearly a year before the formal review of the measures began -- suggesting some type of upfront involvement by the office. Yet the extent of its involvement during this time is unclear because OIRA disclosure requirements apply only to the formal review period. (Indeed, OIRA was under no obligation to disclose its November 2001 meeting.) Whatever the case, the changes made by EPA to the original Clinton proposal mirror many of the recommendations made by the industry representatives who met with Graham. Further details are available below:

• The Pollution Problem
• EPA’s Original Draft
• OIRA’s Influence
• Background

The Pollution Problem Giant livestock operations can house thousands of cows, chickens and pigs, producing astounding amounts of animal waste. These factory farms generate more than 130 times the amount of waste that people do -- about 2.7 trillion pounds of manure a year, according to NRDC. (See the North Carolina Poop Counter for further quantification of this problem.) The farms channel the waste into enormous “lagoons” that often leak, rupture or overflow -- killing fish and other marine life, spreading disease and contaminating community drinking water supplies. These farms also routinely over-apply liquid waste to land areas, known as “sprayfields,” causing it to run into waterways. “Water contaminated by animal manure contributes to human diseases such as acute gastroenteritis, fever, kidney failure, and even death,” according to NRDC. Large livestock operations also pollute the air, emitting toxic gases such as ammonia, hydrogen sulfide and methane. This can cause wheezing, excessive coughing and other adverse health effects, including seizures and even death in those living near or working at factory farms. EPA’s Original Draft As previously mentioned, in moving to a final rule, the Bush EPA substantially weakened the previous Clinton proposal. As a result of changes made by the agency, the factory farm standards:

• Shield corporate polluters from liability. EPA dropped a provision -- contained in the original Clinton proposal and strongly opposed by industry -- that would have held large corporations that produce and sell meat responsible for the waste management practices of contract farmers hired to raise their animals. Eliminating this “co-permitting” provision, which would have required the names of both corporate owners and contract farmers to appear jointly on pollution permits, shields corporate livestock owners from liability for environmental damages they cause.
• Allow polluters to write their own management plans without oversight. The agency removed a provision from the Clinton proposal that required factory farms to consult with certified specialists in developing “nutrient management plans,” which outline how much animal waste will be sprayed on land. EPA rewrote the rule so that facilities can simply develop their own plans without review or approval by the permitting authority. This even though they may not have the expertise necessary to ensure that the application of waste will not cause pollution. EPA also altered the standards so that these plans, which are effectively a license to pollute, do not need to be made available to the public.
• Do not require polluters to test groundwater for contamination. Nitrogen and other animal waste-related contaminants often seep through soil reaching groundwater, which is relied on by many for drinking water and other uses. Elevated nitrate levels can cause “blue baby syndrome,” which can cause death in infants. Despite this, the agency dropped a provision that would have required facilities to monitor groundwater, leaving communities vulnerable to potentially dangerous water supplies.

OIRA’s Influence Administrator John Graham and other staff from OMB’s Office of Information and Regulatory Affairs, which must give its consent to major rules, first met with a number of industry groups affected by the factory farm rules in November of 2001 -- nearly a year before OIRA’s formal review of the measures began. This meeting seems to suggest some sort of upfront involvement by OIRA, which would be consistent with Graham’s stated vision for the office. Unfortunately, the extent of this involvement is unclear because the executive order governing OIRA regulatory review speaks only to the formal review process. There are no transparency requirements prior to an agency’s formal submission of a rule, even if OIRA is involved beforehand and insists on substantial alterations. Indeed, OIRA was under no obligation to disclose its November 2001 meeting (but to its credit, did so anyway). Just a month after this meeting, OIRA instructed EPA to review a recommendation from the conservative Mercatus Center, which sought to relax the factory farm standards proposed by the Clinton administration. Submitted in response to its annual report on regulation, OIRA labeled this recommendation a “high priority,” along with a number of others. After modifying the proposal, EPA formally submitted the standards to OIRA in September of 2002. Documents from the agency’s rulemaking record indicate that a number of provisions were significantly weakened during the review, which lasted three months. During this time, OIRA staff again met with a number of affected industry groups, including the American Farm Bureau Federation (AFB), which followed up on the meeting with a letter to John Graham. AFB detailed a number of concerns, its leading point being that regulation of land application of manure “should be left to the states.” After OIRA’s revisions, the final rule:

• Fails to set standards for land application of animal waste. Land application of animal waste, which is rich in nitrogen and phosphorus, can be useful if applied at appropriate rates, but can increase the likelihood of pollution through runoff if the application is in excess of the crops’ nutrient requirements. EPA’s draft rules contained guidelines for land application of waste and specified particular assessment methods to be used to ensure that manure is not over applied. OIRA revised the section in a manner that surely pleased AFB -- leaving decisions about technical standards for waste application up to the states. The office also dropped a requirement that facilities record the level of phosphorus in their soil, and instead merely asked facilities to provide an explanation of the basis for determining the waste application rates. This could allow facilities to explain away any over application of waste rather than forcing them to provide scientific proof to justify the amount of waste spread. OIRA also eliminated a provision requiring farmers to tune up manure application equipment before use -- increasing the likelihood that equipment could leak or over apply animal waste, and raising the potential for pollution. OIRA further added small provisions that allow farmers to dispose dead animals and chemicals along with animal waste.
• Exempts contaminated runoff from Clean Water Act standards. One of OIRA’s most significant edits broadened an existing loophole to allow operators avoid liability for runoff stemming from land application of manure. “Agricultural storm water” discharge has historically been exempt from the Clean Water Act, so as to protect small farmers from liability when heavy rain causes runoff. Before OIRA received the draft rules, EPA made clear that “agricultural storm water” was to be composed entirely of storm water. OIRA altered the provision though, revoking the proposed definition and leaving the term undefined so that it can be applied quite broadly -- legalizing discharges of raw sewage, bacteria and other elements from land where waste has been applied.
• Encourages the construction of giant waste lagoons. OIRA also meddled with requirements for new facilities that house swine, poultry and veal -- weakening EPA’s all-out ban on manure discharge from the areas where animals and manure are stored. OIRA added language that allows these facilities to meet the “no discharge” requirement by building waste lagoons capable of containing runoff from a 100-year, 24-hour rainfall event. Knowledgeable sources indicate that there was no scientific basis for this “100-year” level; furthermore, such an allowance strongly encourages facilities to construct gigantic waste lagoons, which are one of the main sources of pollution from factory farms today.

Background The Clean Water Act (CWA), passed in 1972, specifically prohibits the discharge of pollutants from directly identifiable locations (known as “point sources”) to U.S. waters unless authorized by permit. Large livestock operations, known as concentrated animal feeding operations (CAFOs), are identified as one category of point sources. The CWA authorizes EPA to establish technology standards, known as “effluent limitation guidelines” or ELGs, to define the type and amount of pollutants a permitted facility is allowed to discharge. In the 1970s, EPA issued regulations specifying which livestock operations met the definition of a CAFO and established ELGs for such facilities. While the livestock industry has undergone significant growth and consolidation in recent decades -- with increased domination by large corporate entities -- the standards for factory farms have remained unchanged. In 1992 NRDC settled a lawsuit filed against EPA for its failure to develop and revise ELGs for industrial sources of water pollution. EPA agreed to propose regulations to update the CAFO rule by Dec. 15, 2000 (the Clinton administration met this deadline, but did not publish its proposal in the Federal Register until January of 2001), and to finalize the rule by Dec. 15, 2002. The agency, under the Clinton administration unveiled a proposal by the Dec. 15, 2000, deadline and the final standards were approved on Dec. 15, 2002, taking effect April 14, 2003. Dissatisfied with the weak standards, four environmental organizations, NRDC, Sierra Club, Waterkeeper Alliance, and the American Littoral Society are currently engaged in lawsuits challenging EPA.