Alt v. EPA: EPA's control over CAFOs shrinks again
Lois Alt is a 61-year-old grandmother who sued EPA in federal court arguing that her large chicken farming operation is exempt from Clean Water Act (CWA) permitting requirements. On October 23, the judge ruled in her favor in an alarming decision that could mean thousands of other large industrial farming operations do not need permits.
The case began when EPA found Ms. Alt in violation of the CWA for discharging without a permit. EPA ordered her to apply for one and informed her that, under the law, she could be subject to civil or criminal penalties. The agency later withdrew the notice, essentially mooting the case. Nevertheless, Judge Bailey felt compelled to rule on the merits.
The facts are not disputed. Ventilation fans blow litter and manure out of Ms. Alt’s eight chicken houses. Rainwater washes this pollution from the yard surrounding the chicken houses into Mudlick Run, a nearby stream, by means of “man-made ditches” (opinion, p.5). Normally, a concentrated animal feeding operation (CAFO) like Ms. Alt’s must get a permit to discharge into surface waters. Congress added a provision to the CWA in 1987 excusing agricultural stormwater discharges from permitting requirements. EPA has construed this …
Since the Reagan Administration, federal agencies have been required by Executive Order to send their major rules to the White House’s Office of Information and Regulatory Affairs (OIRA) for review before releasing them to the public. OIRA review consists of, among other things, ensuring that agencies subject their rules to cost-benefit analysis to make sure the dollar value of their costs to industry exceeds the dollar value of the benefits they confer on the public.
It was no surprise under the Reagan administration – or more recently under the George W. Bush administration – that OIRA review served largely to delay and weaken rules. But you might be surprised to hear that the Obama administration’s record on OIRA delays has been significantly worse than the George W. Bush administration’s. A new report prepared by the Administrative Conference of the United States (ACUS) found that “in 2012 …
This week, it was reported that Senate Democrats plan to force a vote to confirm one judicial nominee to the D.C. Circuit Court of Appeals if Republican Senators continue to block the nominee’s confirmation. Patricia Ann Millett, who has worked for Democratic and Republican administrations in the past, is the contested candidate. Although the circuit court has three vacancies, the Republicans oppose a vote because they say the D.C. Court of Appeals has too many judges. Senator Jefferson Sessions, for example, is quoted as saying about the court, "They have, by far, the lowest caseload per judge. They take the summers off." Other than this political rhetoric, there is nothing to back up this claim. The Republican’s true objection is that, after the President fills the vacancies, the court will have more judges that will have been appointed by presidents who were Democrats …
Congratulations to our friends at Earthjustice and their clients for a tremendous victory in federal district court today. Judge Reggie Walton (a George W. Bush appointee) ordered the Obama Administration to provide a schedule for regulating coal ash within the next 60 days. This epic battle now shifts back to the White House and Congress where nearly hysterical electric utilities that depend on coal-fired power plants will sweep in, aided by some very twisted economics from strong regulation’s staunch nemesis, the Office of Information and Regulatory Affairs (OIRA).
The coal ash crisis burst onto the national scene shortly before Christmas day, 2008, when the contents of an enormous impoundment containing coal-ash slurry from the Tennessee Valley Authority’s (TVA) Kingston Fossil Fuel Plant poured into the Emory River. The proximate cause of the spill was the bursting of a poorly reinforced dike holding back a pit …
In the United States, the framework for safeguarding people and the environment against the dangers of toxic chemicals comprises three mutually reinforcing legal systems: federal regulation, state and federal civil justice systems, and state regulation. Each part of the framework however, has been substantially weakened — the civil justice systems by years of tort "reform," and federal and state regulatory systems by outdated laws and an ongoing campaign by industry and its allies against protective regulation.
Congress is now considering competing bills to fix one part of this framework—the Toxic Substances Control Act (TSCA), the principal statute governing federal regulation of toxic chemicals. The two bills—the more protective Safer Chemical Act (SCA) and the industry-backed Chemical Safety Improvements Act (CSIA)—both fall short of what is needed to fix TSCA, albeit to a widely varying degree—while weakening the civil justice systems and state regulation even …
Last Friday, the FDA posted the revisions the White House Office of Information and Regulatory Affairs (OIRA) made to two food safety rules drafted by the agency two years ago. The proposed rules were issued under the Food Safety and Modernization Act, which Congress passed in the wake of widespread food safety disasters.
As we’ve mentioned in this space before, OIRA is the regulatory review body within the White House that frequently holds onto agency rules for longer than the 120-day limit set by Executive Order 12866, often mangling and weakening the protections developed by agencies at the behest of regulated industries. For one of these rules, on the Foreign Supplier Verification Program (FSVP), OIRA didn’t loosen its grip for a year and eight months, giving it plenty of time to tinker around with the FDA’s proposal behind closed doors.
According to a memo …
Today OSHA announced two new web-based resources designed to help employers eliminate chemical hazards in the workplace. Both the toolkit for identifying less-hazardous substitutes and the annotated exposure limits table are useful informational resources designed to promote voluntary action by conscientious employers and informed demands by workers and their advocates. But OSHA has to deal with both the “high road” and the “low road” employers, so using these new tools in enforcement proceedings is a necessary adjunct to voluntary employer efforts. With some enterprising work by enforcement officials and strong support from the Solicitor of Labor the tools could be the basis for a new wave of enforcement under the OSH Act’s General Duty Clause.
As OSHA freely admits, the Permissible Exposure Limits (PELs) found in current regulations are out-of-date and inadequately protective. Employers may expose workers to chemicals up to those limits without incurring fines …
SBA’s Office of Advocacy has added its voice to the chorus of business interests who want OSHA to delay publication of a new rule that would protect workers from the deadly effects of silica exposure. In a letter to OSHA chief David Michaels, the top lawyers from the Office of Advocacy claim that it will be “nearly impossible” for small business representatives to review OSHA’s proposal and prepare the comments and testimony due in early December.
To be sure, the rulemaking docket is voluminous and the issues are complex. But the bottom line is that each day of delay in publishing the new rule means another day when millions of workers will be exposed to elevated levels of a deadly dust. By OSHA’s estimates, hundreds of workers die each year from silica exposures that are perfectly legal under current standards; thousands of other workers …
Court rules that EPA must decide if new water quality standards are needed to protect the Gulf of Mexico
A US District Court in Louisiana recently ruled, in Gulf Restoration Network v. Jackson, that EPA must decide whether it has to impose new water quality standards for nutrient pollution in the Mississippi River watershed. Although that might seem far afield from the Supreme Court’s greenhouse gas emissions decision in Massachusetts v. EPA, in fact it’s a direct descendant. 
The Administrative Procedure Act allows any interested person to petition any federal agency to make, change, or repeal regulations. The APA doesn’t specifically say how courts should review agency responses to petitions, and in general the courts have been quite deferential to petition denials.
Massachusetts v. EPA is best known for holding that states have standing in federal court to challenge actions that contribute to climate …
“Es ridículo,” was the reaction of a poultry plant worker when he heard of the USDA’s proposal to “modernize” poultry slaughter. The agency’s January 2012 proposal (77 Fed Reg 4408) would allow companies to increase assembly line speeds from about 90 to 175 birds per minute, and remove most USDA inspectors from the poultry processing line.
The Obama Administration should have heard the loud and clear opposition from civil rights, food safety, public health and the workers’ safety communities to the USDA’s proposal. When the public comment period closed in May 2012, the Southern Poverty Law Center (SPLC), Nebraska Appleseed, the American Public Health Association and other groups were on record urging the Administration to withdraw the proposed rule. The National Council of La Raza, the largest Hispanic civil rights organization in the U.S., put it bluntly:
“this proposed rule runs counter to …
