Three non-profit organizations may sue the U.S. Environmental Protection Agency for “unreasonable delay” in responding to a 2007 petition seeking to revoke the state of Iowa’s authority to regulate pollution from CAFOs.  

The Environmental Integrity Project, Sierra Club Iowa Chapter, and Iowa Citizens for Community Improvement sent EPA Administrator Lisa Jackson today a notice of intent to sue. The full text of their letter to Jackson is here (pdf). Excerpt:

Since EIP, Iowa CCI, and the Sierra Club filed the Iowa Petition in [September] 2007, very little has changed with regard to Iowa’s implementation and enforcement of the Clean Water Act (CWA) for CAFOs. The Petition documented Iowa’s failure to issue adequate National Pollutant Discharge Elimination System (NPDES) permits to open feedlots–including those that registered under the state’s permitting program–as well as the state’s failure to issue a single NPDES permit to a confinement CAFP, despite hundreds of discharges to waters of the United States. The Petition also demonstrated that Iowa has disregarded critical conflict of interest regulations and failed to establish adequate programs for CAFO inspections and enforcement, creating a culture of non-compliance that persists today.

Nearly four years later, Iowa CAFOs continue to illegally discharge manure and the state still has not issued an NPDES permit to a single confincement operation. EPA Region 7 has sent several letters to the Iowa Department of Natural Resources (IDNR), in which EPA concurred with several claims in the Petition. However, htese letters failed to address several of the Petition’s most significant issues, including Iowa’s failure to issue permits to confinement operations and its inadequate CAFO inspection and enforcement programs. Moreoever, EPA’s letters did not bring Iowa’s CAFO program into compliance with federal law and have not prevented numerous illegal discharges.

Between the Petition filing date and January 6, 2011, IDNR assessed penalties for approximately 60 discharges from animal feeding operations, many of which were confinement hog facilities. This list does not include discharges for which the agency did not issue penalties or discharges unreported to the state. In 2010, the state finally initiated a rulemaking process to establish CAFO NPDES permit requirements for confinement operations that discharge, only to abandon the proposed rule in June [2011]. IDNR has not proposed an alternative plan to come into compliance with the CWA, despite its own extensive records of illegal discharges. […]

EPA has long recognized the need to regulate CAFOs that discharge pollutants into waters of the U.S. under the CWA NPDES permit program. However, Iowa has failed to meet its obligation to effectively regulate this industry through permitting, inspections, and enforcement. EIP, Iowa CCI, and Sierra Club petitioned EPA to exercise its oversight authority, asking it to review Iowa’s CAFO program and initiate withdrawal proceedings if the state does not come into compliance. Nearly four years later, the state steadfastly refuses to implement federal CAFO regulations and unpermitted manure spills pollute the state’s waters unabated. EPA has an unambiguous obligations to timely respond to the Petition, and its delay in doing so is unreasonable.

If the Iowa DNR didn’t act on this issue during Governor Chet Culver’s administration, it’s obviously not going to act on it now. Governor Terry Branstad has repeatedly claimed environmental regulations on Iowa farms are already too strict. The question is whether the U.S. EPA, which is under plenty of political pressure, will take matters into its own hands.

I enclose below today’s joint press release from the three groups that may sue the EPA. Share any relevant thoughts in this thread.

August 18, 2011

Environmental Groups Intend to Sue U.S. EPA over Iowa’s Weak Factory Farm Rules

Lawsuit will move forward without decisive federal action to strengthen Iowa’s public oversight over factory farm polluters

DES MOINES, IA-

Three state and national environmental justice organizations served the U.S. Environmental Protection Agency (EPA) with a notice of intent (NOI) to sue the federal agency for its failure to act on a 2007 petition to revoke the Iowa Department of Natural Resources’ (DNR) authority to regulate factory farm water pollution. A copy of the NOI can be read here.

The 2007 de-delegation petition demanded that EPA revoke the state of Iowa’s authority to issue Clean Water Act operating permits to factory farm polluters because the state’s program does not meet federal minimum standards and Iowa has failed to implement critical factory farm regulations, at great cost to water quality.  In addition to issuing the mandatory response, the groups asked that EPA act by notifying the state that it is not administering the permit program for manure spills in accordance with the Clean Water Act, and hold a public hearing on the matter.  Almost four years have passed with no response from EPA or significant improvements in the state’s permit program.

In June, the DNR’s Environmental Protection Commission (EPC) voted to indefinitely put on hold new rules designed to bring Iowa into compliance with the federal Clean Water Act, a move that has already prompted Iowa CCI members to file a conflict of interest complaint against  EPC commissioner Brent Rastetter, who also owns a multi-million dollar factory farm construction company.

“The EPA needs to do its job and force the Iowa DNR to start issuing Clean Water Act permits to factory farms,” said Lori Nelson, a CCI board member from Bayard in Guthrie County. “DNR keeps kowtowing to the factory farm industry and our Governor keeps appointing people who are hostile to environmental regulations to key positions in the DNR and EPC.  They will do nothing unless EPA forces them to act.”

“Enough is enough. We have a record number of polluted waterways and have had over 700 manure spills-with two giant manure spills that caused massive fish kills just in the last two weeks. EPA needs to act now-it’s time to put the people of Iowa before polluters.”

EPA’s own rules require it to issue a response to the de-delegation petition.  All three groups expressed their strong desire to avoid legal action against EPA in this matter.

Since we filed the petition in 2007, EPA has sat idly by while Iowa DNR continues to allow hog factories to pollute the state’s waters,” said EIP Attorney Tarah Heinzen. “Despite hundreds of illegal manure spills and devastating fish kills, Iowa DNR continues to blatantly ignore federal law and refuses to regulate factory farms.”

“EPA’s nearly four-year delay in addressing our petition is unreasonable and unlawful, and its continued inaction in the face of Iowa’s broken regulatory program is unacceptable. The water quality and in turn the public continue to suffer in Iowa.  Iowa agreed to regulate polluters when it took control over the water program, and it hasn’t lived up to its end of the deal. Iowa citizens have waited long enough – it is past time for EPA to do its job by stepping in to protect public health and the environment from factory farms.”

The notice letter filed this week buttresses the groups’ initial request for a formal response from EPA, granting or denying the 2007 petition and providing a reasonable basis for its decision.  A sufficient response to the petition will include an Investigation Report similar to that issued by EPA Region 5 with regard to Illinois’ CAFO program, and will establish a plan to either bring Iowa’s CAFO program into compliance with the CWA or initiate formal withdrawal proceedings.

For more information and a copy of the full EIP, CCI and Sierra Club notice of intent to sue and the 2007 petition at: http://www.environmentalintegr…

BACKGROUND

Since Iowa DNR received authority to implement and enforce the Clean Water Act in 1978, its program has failed to keep pace with dramatic changes in Iowa’s livestock industry.  Iowa DNR is aware of its failure to regulate CAFOs under the Clean Water Act, and even acknowledged that “the most obvious threat to maintaining good chemical water quality in Iowa surface waters is the recent expansion of the confined animal feeding industry.”

Federal law allows citizens to petition EPA to withdraw the power of a state to issue Clean Water Act permits.  EPA regulations list the relevant criteria that would justify removing a state’s authority.  This petition demonstrates that Iowa meets those criteria, and concludes that EPA should withdraw Iowa’s authority to issue CWA permits if the state does not begin regulating factory farm polluters.

ABOUT THE GROUPS

The Environmental Integrity Project (www.environmentalintegrity.org) is a national non-profit organization dedicated to advocating for more effective enforcement of environmental laws, including the federal Clean Water Act. EIP works to improve state and federal regulation of Concentrated Animal Feeding Operations and to improve water quality in the Upper Mississippi River Watershed.

Iowa Citizens for Community Improvement (www.iowacci.org) is a group of everyday people who talk, act and get things done on issues that matter most. With thousands of members from all walks of life — urban and rural, black and white, immigrants and lifelong Iowans — CCI has been tackling tough issues and getting things done for more than 35 years. The mission of Iowa Citizens for Community Improvement is to empower and unite grassroots people of all ethnic backgrounds to take control of their communities; involve them in identifying problems and needs, and in taking action to address them; and be a vehicle for social, economic, and environmental justice.

The Sierra Club is America’s largest and most influential grassroots environmental organization. Inspired by nature, we are 1.4 million of your friends and neighbors, working together to protect our communities and the planet. In Iowa, the Sierra Club’s more than 6,000 members are working to reduce pollution from animal feeding operations.