[Federal Register Volume 70, Number 244 (Wednesday, December 21, 2005)]
[Proposed Rules]
[Pages 75771-75779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24303]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 412
[EPA-HQ-OW-2005-0036; FRL-8011-7]
RIN 2040-AE80
Revised Compliance Dates for National Pollutant Discharge
Elimination System Permit Regulation and Effluent Limitation Guidelines
for Concentrated Animal Feeding Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to extend certain compliance dates in the
National Pollutant Discharge Elimination System (NPDES) permitting
requirements (40 CFR part 122) and Effluent Limitations Guidelines and
Standards (ELGs) (40 CFR part 412) for concentrated animal feeding
operations (CAFOs) in conjunction with EPA's efforts to respond to the
order issued by the Second Circuit Court of Appeals in Waterkeeper
Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005). The purpose of
today's proposed rule is to address timing issues associated with the
Agency's response to the Waterkeeper decision.
This proposal would revise dates established in the 2003 CAFO rule,
issued on February 12, 2003, by which facilities newly defined as CAFOs
were required to seek permit coverage and by which all CAFOs were
required to have nutrient management plans (NMPs) developed and
implemented. EPA is proposing to extend the date by which operations
defined as CAFOs as of April 14, 2003, who were not defined as CAFOs
prior to that date, must seek NPDES permit coverage, from February 13,
2006, to March 30, 2007. EPA is also proposing to amend the date by
which operations that become defined as CAFOs after April 14, 2003, due
to operational changes that would not have made them a CAFO prior to
April 14, 2003, and that are not new sources, must seek NPDES permit
coverage, from April 13, 2006, to March 30, 2007. Finally, EPA is
proposing to extend the deadline by which CAFOs are required to develop
and implement NMPs, from December 31, 2006, to March 30, 2007. This
proposal would revise all references to the date by which NMPs must be
developed and implemented currently in the 2003 CAFO rule.
EPA will also be issuing a proposed rule to revise the 2003 CAFO
regulations more broadly in order to address the Second Circuit Court
of Appeals decision in a subsequent Federal Register Notice, which the
Agency plans to propose for public comment in early 2006.
DATES: Comments on this proposed action must be received on or before
January 20, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2005-0036 by one of the following methods:
(1) http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
(2) E-mail: [email protected], Attention Docket ID No. EPA-HQ-OW-
2005-0036.
(3) Mail: Send the original and three copies of your comments to:
Water Docket, Environmental Protection Agency, Mail code 4203M, 1200
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No.
OW-2005-0036.
(4) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC,
Attention Docket ID No. OW-2005-0036. Such deliveries are only accepted
during the Docket's normal hours of operation and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2005-
0036. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information
[[Page 75772]]
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Water Docket in
the EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave.,
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the Water Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: Kawana Cohen, Water Permits Division,
Office of Wastewater Management (4203M), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number: (202) 564-2345, e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
B. What Should I Consider as I Prepare My Comments for EPA?
II. Background
A. The Clean Water Act
B. History of Actions to Address CAFOs under the NPDES
Permitting Program
C. Ruling by the U.S. Court of Appeals for the Second Circuit
1. Issues Upheld by the Court
2. Issues Vacated by the Court
3. Issues Remanded by the Court
D. What Requirements Still Apply to CAFOs?
E. Status of EPA's Response to the Waterkeeper Decision
F. Compliance Dates in the 2003 CAFO Rule Affected by the
Waterkeeper Decision
III. Today's Proposal
A. Application Deadline for Newly Defined CAFOs
1. Proposal to Extend Deadline for Seeking Permit Coverage
2. Background
3. Rationale
B. Deadline for Nutrient Management Plans
1. Proposal to Extend Deadline for Nutrient Management Plans
2. Background
3. Rationale
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental
Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. Does This Action Apply to Me?
This action applies to concentrated animal feeding operations
(CAFOs) as defined in section 502(14) of the Clean Water Act and in the
NPDES regulations at 40 CFR 122.23. The following table provides a list
of standard industrial codes for operations covered under this revised
rule.
Table 1.--Entities Potentially Regulated by this Rule
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Standard
North American industrial
Category Examples of regulated entities industry code classification
(NAIC) code
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Federal, State, and Local Government:
Industry............................ Operators of animal production
operations that meet the
definition of a CAFO.
Beef cattle feedlots (including 112112 0211
veal).
Beef cattle ranching and farming 112111 0212
Hogs............................ 11221 0213
Sheep........................... 11241, 11242 0214
General livestock except dairy 11299 0219
and poultry.
Dairy farms..................... 11212 0241
Broilers, fryers, and roaster 11232 0251
chickens.
Chicken eggs.................... 11231 0252
Turkey and turkey eggs.......... 11233 0253
Poultry hatcheries.............. 11234 0254
Poultry and eggs................ 11239 0259
Ducks........................... 112390 0259
Horses and other equines........ 11292 0272
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by
[[Page 75773]]
this action. Other types of entities not listed in the table could also
be regulated. To determine whether your facility is regulated under
this rulemaking, you should carefully examine the applicability
criteria in 40 CFR 122.23. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting Confidential Business Information. Do not submit this
information to EPA through http://www.regulations.gov or e-mail.
Clearly mark the part or all of the information that you claim to be
CBI. (For CBI information in a disk or CD ROM that you mail to EPA,
mark the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is claimed as CBI). In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR
part.)
2. Tips for Preparing Your Comments. It will be helpful if you
follow these guidelines as you prepare your written comments:
i. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns, and
suggest alternatives.
vii. Explain your views as clearly as possible.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. Background
A. The Clean Water Act
Congress passed the Federal Water Pollution Control Act (1972),
also known as the Clean Water Act (CWA), to ``restore and maintain the
chemical, physical, and biological integrity of the nation's waters''
(33 U.S.C. 1251(a)). Among the core provisions, the CWA establishes the
NPDES permit program to authorize and regulate the discharge of
pollutants from point sources to waters of the U.S. 33 U.S.C. 1342.
Section 502(14) of the CWA specifically includes CAFOs in the
definition of the term ``point source.'' Section 502(12) defines the
term ``discharge of a pollutant'' to mean ``any addition of any
pollutant to navigable waters from any point source'' (emphasis added).
EPA has issued comprehensive regulations that implement the NPDES
program at 40 CFR part 122. The Act also provides for the development
of technology-based and water quality-based effluent limitations that
are imposed through NPDES permits to control the discharge of
pollutants from point sources. CWA section 301(a) and (b).
B. History of Actions To Address CAFOs Under the NPDES Permitting
Program
EPA's regulation of wastewater and manure from CAFOs dates to the
1970s. EPA initially issued national effluent limitations guidelines
and standards for feedlots on February 14, 1974 (39 FR 5704), and NPDES
CAFO regulations on March 18, 1976 (41 FR 11458).
In February 2003, EPA issued revisions to these regulations that
focused on the 5% of the nation's animal feeding operations (AFOs) that
presented the highest risk of impairing water quality and public health
(68 FR 7176) (the ``2003 CAFO rule''). The 2003 CAFO rule required the
owner or operators of all CAFOs \1\ to seek coverage under an NPDES
permit. CAFO industry organizations (American Farm Bureau Federation,
National Pork Producers Council, National Chicken Council, and National
Turkey Federation (NTF), although later NTF later withdrew its
petition) and environmental groups (Waterkeeper Alliance, Natural
Resources Defense Council, Sierra Club, and American Littoral Society)
filed petitions for judicial review of certain aspects of the 2003 CAFO
rule. This case was brought before the U.S. Court of Appeals for the
Second Circuit. On February 28, 2005, the court ruled on these
petitions and upheld most provisions of the 2003 rule but vacated and
remanded others. Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd
Cir. 2005). The court's decision is described below.
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\1\ The Clean Water Act regulates the conduct of persons, which
includes the owners and operators of CAFOs, rather than the
facilities or their discharges. To improve readability in this
preamble, reference is made to ``CAFOs'' as well as ``owners and
operators of CAFOs.'' No change in meaning is intended.
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C. Ruling by the U.S. Court of Appeals for the Second Circuit
The Second Circuit's decision in Waterkeeper upheld certain
challenged provisions of the 2003 rule and vacated or remanded others.
This discussion is included in the preamble to provide the reader with
background information and context why this proposed action is
necessary. While today's proposal deals solely with the compliance
dates, EPA plans to publish a subsequent rulemaking that will address
more broadly the substantive changes to the 2003 rule in response to
Waterkeeper. The Agency plans to make available the more comprehensive
rulemaking for public comment in early 2006.
1. Issues Upheld by the Court
This section discusses provisions of the 2003 CAFO rule that were
challenged by either industry or environmental petitions, but were
upheld by the Waterkeeper court and therefore remain unchanged. EPA is
not proposing to revise any of these provisions in today's notice and
is not soliciting comment on them.
a. Land Application Regulatory Framework and Interpretation of
``Agricultural Storm Water''. The Waterkeeper court upheld EPA's
authority to regulate, through NPDES permits, the runoff of manure,
litter, and process wastewater that CAFOs apply to crop or forage land.
The court rejected the Industry Petitioners' claim that land
application runoff at CAFOs must be channelized before it can be
considered to be a point source discharge subject to permitting. The
court noted that the CWA expressly defines the term ``point source'' to
include ``any * * * concentrated animal feeding operation * * * from
which pollutants are or may be discharged,'' and found that the Act
``not only permits, but demands'' that land application discharges be
construed as discharges ``from'' a CAFO. Waterkeeper Alliance et al. v.
EPA, 399 F.3d at 510.
The Waterkeeper court also upheld EPA's determination in the 2003
CAFO rule that precipitation-related discharges of manure, litter, or
process wastewater from land application areas under the control of a
CAFO qualify as ``agricultural storm water'' only where the CAFO has
applied the manure in
[[Page 75774]]
accordance with NMPs that ensure ``appropriate agricultural
utilization'' of the manure, litter, and process wastewater nutrients.
EPA's interpretation of the Act in this regard was reasonable, the
court found, in light of Congressional intent in excluding agricultural
storm water from the meaning of the term ``point source'' and given the
precedent set in an earlier Second Circuit case, Concerned Area
Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir.
1994). Waterkeeper Alliance et al. v. EPA, 399 F.3d at 508-09.
b. Effluent Guidelines. The Waterkeeper court upheld the CAFO
effluent guidelines against challenges from the litigants, except for
the items remanded to EPA, as noted further below, as follows:
--Identification of best available technologies. The court rejected the
environmental organizations' claim that when EPA chose the pollution
control technologies on which to base effluent guidelines for CAFOs,
the Agency did not meet its duty to identify the single CAFO with the
best-performing technology. The court found that EPA had collected
extensive data on the waste management systems at CAFOs and had
considered approximately 11,000 public comments on the proposed CAFO
rule, and on those bases, EPA had adequately justified its selection of
``best available technologies'' on which to base the regulations.
--Groundwater controls. The court upheld EPA's decision to leave
groundwater discharges to be addressed at the state level or on a site
specific basis. EPA had determined that because such discharges depend
greatly on local geology and other site-specific factors, the need for
controls on groundwater discharges was a matter to be evaluated at the
local level rather than established in a national regulation.
--Economic methodologies. The court upheld the financial methodologies
that EPA used for determining whether the technology-based permit
requirements for CAFOs set in the 2003 rule would be economically
achievable by the industry as a whole.
2. Issues Vacated by the Court
The following are the elements of the 2003 rule that the
Waterkeeper court found to be unlawful and therefore vacated. EPA is
not proposing to revise any of these provisions in today's notice and
is not soliciting comment on them. As noted above, EPA intends to
address the court's ruling vacating these provisions in a subsequent
proposal that will follow in the coming months.
a. Duty to Apply. The CAFO industry organizations argued that the
EPA exceeded its statutory authority by requiring all CAFOs to either
apply for NPDES permits or otherwise demonstrate that they have no
potential to discharge. The court agreed with the CAFO industry
petitioners on this issue and therefore vacated the ``duty to apply''
provision of the 2003 CAFO rule.
The court found that the duty to apply, which the Agency had based
on a presumption that most CAFOs have at least a potential to
discharge, was invalid, because the CWA subjects only actual discharges
to regulation rather than potential discharges. The court acknowledged
EPA's strong policy considerations for seeking to impose a duty to
apply--``EPA has marshaled evidence suggesting that such a prophylactic
measure may be necessary to effectively regulate water pollution from
Large CAFOs, given that Large CAFOs are important contributors to water
pollution'' (399 F.3d at 506, fn.22)\2\--but found that the Agency
nevertheless lacked statutory authority to do so.
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\2\ Similarly, the United States Government Accountability
Office concluded in 2003 that the measures in EPA's 2003 rule would
solve the problems created by exemptions in the 1976 rule. (United
States General Accounting Office. 2003. Livestock Agriculture:
Increased EPA Oversight Will Improve Environmental Protection for
Concentrated Animal Feeding Operations, Report to the Ranking
Member, Committee on Agriculture, Nutrition and Forestry, U.S.
Senate. GAO-03-285. Washington, DC)
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b. Nutrient Management Plans. The environmental organizations
argued that the 2003 CAFO rule was unlawful because: (1) The rule
empowered permitting authorities to issue permits without any
meaningful review of the CAFO's NMP, (2) the rule failed to require
that the terms of the NMP be included in the NPDES permit, and (3) the
permitting scheme established by the rule violated the Clean Water
Act's public participation requirements. The court agreed with the
environmental petitioners on these three issues.
The court relied on provisions of the Act that authorize point
source discharges only where NPDES permits ``ensure that every
discharge of pollutants will comply with all applicable effluent
limitations and standards,'' citing CWA sections 402(a)(1), (a)(2), and
(b). Because the 2003 CAFO rule allowed CAFOs to write their own NMPs
and because those plans were not required to be reviewed by the
permitting agency or made available to the public for comment before
the permit was issued, the court found that the rule did not ensure
that each Large CAFO will develop a satisfactory plan. The court also
found that the terms of the NMPs themselves are ``effluent
limitations'' as that term is defined in the Act and therefore must be
included in the permit under CWA sections 301 and 402. In addition, the
court found that by not making the NMPs part of the permit and
available to the public for review, the 2003 CAFO rule violated public
participation requirements in sections 101(e) and 402 of the Act.
3. Issues Remanded by the Court
The court also remanded other aspects of the CAFO rule to EPA ``for
further clarification and analysis.'' EPA is not proposing to revise
any of these provisions in today's proposal and is not soliciting
comment on them. As previously noted, the agency plans to address these
issues in its forthcoming proposed rule. They are as follows:
a. Water Quality-Based Effluent Limits. The court agreed with EPA
that agricultural storm water is excluded from the meaning of the term
``point source'' and therefore is not subject to water quality-based
effluent limitations in permits. However, the court directed EPA to
``clarify the statutory and evidentiary basis for failing to promulgate
water quality-based effluent limitations for discharges other than
agricultural storm water discharges as that term is defined in 40 CFR
122.23(e),'' and to ``clarify whether States may develop water quality-
based effluent limitations on their own.''
b. New Source Performance Standards--100-Year Storm. Standard. The
2003 CAFO rule set the new source performance standards (NSPS) for
swine, poultry, and veal CAFOs at a level of zero discharge. A CAFO in
these categories could fulfill this requirement by showing that either
(1) Its production area was designed to contain all manure, litter,
process wastewater, and precipitation from the 100-year, 24-hour storm,
or (2) it would comply with ``voluntary superior performance
standards'' based on innovative technologies, under which a discharge
from the production area would be allowed if it was accompanied by an
equivalent or greater reduction in the quantity of pollutants released
to other media (e.g., air emissions). The court found that EPA had not
justified in the record nor provided adequate public participation with
respect to either of these provisions. As a result, the court remanded
these provisions to EPA to clarify, via a process that adequately
[[Page 75775]]
involves the public, the statutory and evidentiary basis for their
allowance.
c. BCT Effluent Guidelines for Pathogens. The court held that the
2003 CAFO rule violated the CWA because EPA had not made an affirmative
finding that the BCT-based ELGs `` i.e., the ``best conventional
technology'' guidelines for conventional pollutants such as fecal
coliform `` do in fact represent BCT technology. The court remanded
this issue to EPA to make such a finding based on the best available
control technology economically achievable (BAT)/best practicable
control technology currently available (BPT) technologies EPA studied
or to establish specific BCT limitations for pathogens based on some
other technology.
D. What Requirements Still Apply to CAFOs?
The Waterkeeper decision either upheld or did not address most
provisions of the 2003 CAFO rule. This section describes certain key
portions of the rule that were not challenged in Waterkeeper. EPA is
not proposing to revise any of these provisions and is not soliciting
comment on them.
The definitions provided in 40 CFR 122.23(b) of the 2003 CAFO rule
remain in effect and are unchanged. First, an operation must be defined
as an animal feeding operation (AFO) before it can be defined as a
concentrated animal feeding operation (CAFO). 40 CFR 122.23. The term
``animal feeding operation'' is defined by EPA regulation as a ``lot or
facility'' where animals ``have been, are or will be stabled or
confined and fed or maintained for a total of 45 days or more in any 12
month period and crops, vegetation, forage growth, or post harvest
residues are not sustained in the normal growing season over any
portion of the lot or facility.''
Whether an AFO is a CAFO depends primarily on the number of animals
confined, which is also unchanged. Large CAFOs are AFOs that contain
more than the threshold number of animals detailed in 40 CFR
122.23(b)(4). Medium CAFOs contain fewer animals than Large CAFOs and
also: (1) Discharge pollutants into waters of the U.S. through a man-
made ditch, flushing system, or other similar man-made device; or (2)
discharge pollutants directly into waters of the U.S. that originate
outside of and pass over, across, or through the facility or otherwise
come into direct contact with the confined animals. 40 CFR
122.23(b)(6)(ii). The NPDES permitting authority also may, on a case-
by-case basis, designate any AFO, including Small CAFOs, as a CAFO
after conducting an on-site inspection and finding that the facility
``is a significant contributor of pollutants to waters of the United
States.'' 40 CFR 122.23(c). The permitting authority may not exercise
its authority to designate a facility as a Small CAFO unless pollutants
are discharged into waters of the U.S. through a man-made ditch,
flushing system, or other similar man-made device, or are discharged
directly into waters of the U.S. which originate outside of the
facility and pass over, across, or through the facility or otherwise
come into direct contact with the animals confined in the operation.
The 2003 CAFO rule also eliminated the provision in the original
regulations stating that a facility was not defined as a CAFO if it
discharged only in the event of a 25-year, 24-hour storm. The
Waterkeeper decision did not affect this aspect of the 2003 rule, under
which facilities no longer have an exemption from the definition of a
CAFO if they discharge only in the event of a 25-year, 24-hour storm.
Likewise, the Waterkeeper decision did not affect the 2003 rule's
inclusion, for the first time, of certain animal sectors within the
definition of a CAFO, such as chicken operations with dry systems for
handling manure.
Any discharge of manure, litter, or process wastewater from the
production area of a CAFO to a water of the U.S. violates the CWA
unless it is authorized by an NPDES permit. By eliminating the 25-year,
24-hour storm exemption in the 2003 rule, any overflow (see definition
in Sec. 412.2(g)), from any containment structure under any climatic
condition, including chronic or catastrophic rainfall events, is an
illegal discharge unless authorized by a permit. Additionally, any
runoff of manure, litter, or process wastewater from a CAFO land
application area to waters of the U.S. that is not agricultural storm
water is illegal unless authorized by a permit. Examples include, but
are not limited to, the discharge of litter, manure, or process
wastewater directly to waters of the United States (e.g., application
of liquid manure directly to surface water); dry-weather discharges due
to the land application of manure, litter, or process wastewater; or
the discharge of process wastewater or liquid manure from subsurface
drains during dry weather.
Nutrient management planning requirements for permitted CAFOs
established in the 2003 CAFO rule also remain in place following the
court's ruling. All permitted CAFOs must develop and implement an NMP
that meets the requirements of 40 CFR 122.42(e) and 40 CFR 412.4, where
applicable. The NMP identifies the necessary actions to ensure that
runoff is eliminated or minimized through proper and effective manure,
litter, and wastewater management, including compliance with the ELGs.
NMPs for Large CAFOs must also contain additional provisions regarding
the land application of manure. Permitted CAFOs must comply with all
applicable recordkeeping and reporting requirements including those
specified in 40 CFR 122.42(e).
ELG requirements for existing Large CAFOs also are largely
unchanged following the court's ruling. ELG requirements ensure the
appropriate storage of manure, litter, and process wastewater and
proper land application practices. They vary depending upon the types
of animals confined: Subpart A for horses and sheep; Subpart B for
ducks; Subpart C for dairy cattle, heifers, steers, and bulls; and
Subpart D for swine, poultry, and veal calves (40 CFR part 412).
Additionally, New Source requirements for beef and dairy operations
remain unchanged (40 CFR 412.35).
Permitted Small and Medium CAFOs are not subject to the ELGs
specified in part 412. Rather, they must comply with all case-by-case
technology-based requirements developed by the permitting authority
(i.e., Best Professional Judgment (BPJ)).
E. Status of EPA's Response to the Waterkeeper Decision
EPA is developing a rulemaking to respond to all of the issues in
the 2003 CAFO rule vacated or remanded by the Second Circuit Court of
Appeals. EPA plans to issue a proposed rulemaking for public comment in
early 2006 and a final rulemaking as expeditiously as possible.
F. Compliance Dates in the 2003 CAFO Rule Affected by the Waterkeeper
Decision
The 2003 CAFO rule required all newly defined CAFOs, as of the date
of the final rule, and some new dischargers to seek permit coverage by
February 13, 2006, or April 13, 2006, respectively. The rule also
required all CAFOs to develop and implement an NMP by December 31,
2006. EPA is proposing to revise each of these dates in order: (1) To
provide the Agency sufficient time to take final action on the
regulatory revisions it plans to propose in the near future with
respect to the Second Circuit's decision; and (2) To require NMPs to be
submitted at the time of the permit application, consistent with the
court's decision.
[[Page 75776]]
III. Today's Proposal
Today's proposal is intended to extend certain dates for compliance
specified in the 2003 CAFO rule. EPA proposes to extend the dates for
newly defined CAFOs to seek NPDES permit coverage and the date by which
all CAFOs must develop and implement NMPs. Because EPA is not likely to
have completed the rulemaking responding to the Waterkeeper decision
prior to the dates by which newly defined CAFOs must seek permit
coverage, the Agency proposes in today's notice to revise these dates
to a time that is subsequent to the forthcoming CAFO rule revision.
Inasmuch as these proposed revisions precede the other regulatory
revisions that EPA plans to propose to respond to the Waterkeeper
decision, they are made strictly in the context of existing regulations
promulgated in the 2003 CAFO rule. Today's proposal is simply a means
of avoiding conflict with existing deadlines that precede EPA's
upcoming revisions to the 2003 rules. Today's proposal does not, for
example, address issues associated with the court's vacature of the
requirement that all CAFOs seek coverage under an NPDES permit. That
issue and other related issues will be addressed in the separate
upcoming rulemaking. Therefore, EPA is today soliciting comment only on
its proposal to revise specific dates in the 2003 rule, as described
below.
A. Application Deadline for Newly Defined CAFOs
1. Proposal To Extend Deadline for Seeking Permit Coverage
EPA is proposing to extend the date by which operations defined as
CAFOs as of April 14, 2003, that were not defined as CAFOs prior to
that date, must seek NPDES permit coverage, from February 13, 2006, to
March 30, 2007. EPA is also proposing to amend the date by which
operations that become defined as CAFOs after April 14, 2003, due to
operational changes that would not have made them a CAFO prior to April
14, 2003, and that are not new sources, must seek NPDES permit
coverage, from April 13, 2006, to March 30, 2007.
Today's proposal would not affect the requirements applicable to
new source CAFOs that discharge or propose to discharge, even those in
categories that were added to the definition of a CAFO in the 2003 CAFO
rule. New source CAFOs that discharge or propose to discharge are
required by the 2003 CAFO rule to seek NPDES permit coverage at least
180 days prior to the time that they commence operating.
2. Background
The 2003 CAFO rule added facilities that had not been previously
defined as CAFOs (in the 1976 regulations) to the definition of a CAFO.
Operations newly defined as CAFOs in the 2003 CAFO rule included veal
operations, chicken and layer operations using other than liquid manure
handling systems, and AFOs that were previously not defined as CAFOs
because they discharged only in the event of a 25-year/24-hour storm
(see 40 CFR 122.23(b)). Those CAFOs in these categories that were in
existence on the date the 2003 CAFO rule took effect (April 14, 2003)
represent the group of CAFOs currently subject to the February 13,
2006, deadline (see 40 CFR 122.23(g)(2)). This group of CAFOs
represented most of the newly defined CAFOs that were covered by the
2003 rule. In addition, other existing facilities that might become
CAFOs, as a result of the revised CAFO definitions in the 2003 CAFO
rule, are so-called ``new dischargers'' that might at some date
subsequent to the effective date of the 2003 CAFO rule become a CAFO
due to changes in their operations, where those changes would not have
made the operation a CAFO prior to April 14, 2003. This second group of
facilities is currently required to seek permit coverage by April 13,
2006, or 90 days after becoming defined as a CAFO (whichever date is
later) (see 40 CFR 122.23(g)(3)(iii)).
Both of these groups of CAFOs were allowed three years to seek
permit coverage when EPA issued the 2003 CAFO rule. In the preamble to
the 2003 CAFO rule, EPA reasoned that such an approach was consistent
with Congressional intent with respect to newly established point
sources, in the 1972 Clean Water Act, and with Agency practice in a
similar prior rulemaking. Moreover, the Agency believed that the three
year delay provided other advantages, including adequate time for
States to provide permit coverage for CAFOs that were not previously
required to be permitted and to revise state regulatory programs (see
68 FR 7204).
3. Rationale
These newly defined CAFOs are required by the current regulations
to seek NPDES permit coverage by the dates established in the 2003 CAFO
rule (either in February 2006 or April 2006). Both of these dates occur
before the time when EPA will be issuing the upcoming rule revisions.
EPA is proposing to extend those dates to allow EPA time to complete
that rulemaking. EPA believes that, under these circumstances, there
are compelling reasons to provide these CAFOs, who are required to
apply for an NPDES permit for the first time under the 2003 rule, an
extension of time so that they need not apply for permits until after
EPA has completed the forthcoming revisions to the 2003 rule. This is
appropriate, for example, because among other things the revisions will
address the court's ruling on which CAFOs need to apply for permits at
all and, where permits are issued, the need to include terms of the
NMPs in the permit.
Because today's proposed extension would add another year to the
three years originally provided for these facilities to obtain NPDES
permit coverage, EPA does not believe that a further extension beyond
March 2007, is either necessary or appropriate at this time.
B. Deadline for Nutrient Management Plans
1. Proposal To Extend Deadline for Nutrient Management Plans
EPA is proposing to extend the deadline by which permitted CAFOs
are required to develop and implement NMPs, from December 31, 2006, to
March 30, 2007. This proposal would revise all references to the date
by which NMPs must be developed and implemented currently in the 2003
CAFO rule. Thus the deadlines established in 40 CFR 122.21(i)(1)(x),
122.42(e)(1), 412.31(b)(3), and 412.43(b)(2) are all proposed to be
revised accordingly.
Today's proposal would not affect CAFOs operating under existing
permits so long as those permits remain in effect. If their existing
permits require development and implementation of an NMP, currently
permitted CAFOs must develop and implement their NMPs in accordance
with the terms of their current permit.
2. Background
The 2003 CAFO rule required all CAFOs to develop and implement a
NMP by December 31, 2006, except that CAFOs seeking to obtain coverage
under a permit subsequent to that date were required to have a NMP
developed and implemented upon the date of permit coverage. The same
dates were established for the implementation of the land application
requirements in the Effluent Limitation Guidelines (ELGs), including
the NMP requirements in the ELGs. As discussed in the preamble to the
2003 CAFO rule, EPA believed that these dates were reasonable given
that operations would have had three and a half years from the time the
2003 rule
[[Page 75777]]
was issued to employ the necessary planning and construction to
implement an NMP. For Large CAFOs that are new sources (i.e., those
commencing construction after the effective date of the 2003 CAFO
rule), the land application requirements at 40 CFR 412.4(c) applied
immediately.
EPA concluded that this timeframe also allowed States to update
their NPDES programs and issue permits to reflect the NMP requirements
of the 2003 CAFO rule and provided flexibility for permit authorities
to establish permit schedules based on specific circumstances,
including prioritization of NMP development and implementation based on
site-specific water quality risks and the available infrastructure for
development of NMPs.
3. Rationale
The proposal to extend the date by which CAFOs must develop and
implement their NMPs is consistent with today's proposal to extend the
deadline for newly defined CAFOs to seek permit coverage, and would
mean that CAFOs would be required to have developed and implemented an
NMP as of the date they apply for an NPDES permit.
As previously discussed, EPA plans to address in a separate
proposal the Second Circuit's ruling with respect to including terms of
the NMP in permits issued to CAFOs. For present purposes, EPA notes
that making these two deadlines coincide would be consistent with the
Court's direction to include terms of the NMP in permits issued to
CAFOs.
EPA does not believe that additional time beyond March 2007 is
necessary at this time because the substantive NMP requirements have
been in place since February 2003, and CAFOs have thus had adequate
time to prepare NMPs. By extending the original deadline for NMP
development by three additional months, today's proposal allows the
CAFO operator time during the winter season to prepare the NMP
paperwork and to begin implementing the practices in the NMP.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735; October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
1. Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this proposed rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and, therefore, is not subject to OMB review.
B. Paperwork Reduction Act
This proposed action does not impose any new information collection
burden. As discussed above, the purpose of today's proposed rule is
solely to address timing issues associated with the Agency's response
to the Waterkeeper court ruling based on litigation ensuing from the
2003 CAFO rule. However, the Office of Management and Budget (OMB) has
previously approved the information collection requirements contained
in the existing regulations at 40 CFR parts 9, 122, 123, and 412 under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned OMB control number 2040-0250. The EPA ICR number for
the original set of regulations is 1989.02. A copy of the OMB approved
Information Collection Request (ICR) may be obtained from Susan Auby,
Collection Strategies Division; U.S. Environmental Protection Agency
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by
calling (202) 566-1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment on rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business based
on Small Business Administration (SBA) size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
The effect of the proposal, if implemented is solely to extend
certain compliance deadlines related to NPDES CAFO permitting. EPA
believes that this will have the effect of relieving the regulatory
burden for affected CAFOs.
[[Page 75778]]
We continue to be interested in the potential impacts of the proposed
rule on small entities and welcome comments on issues related to such
impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and to adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this proposed rule would not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. As discussed above, the purpose of
today's proposed rule is solely to address timing issues associated
with the Agency's response to the Waterkeeper court ruling based on
litigation ensuing from the 2003 CAFO rule.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6(b) of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal Government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. Under section 6(c) of Executive
Order 13132, EPA may not issue a regulation that has federalism
implications and that preempts State law, unless the Agency consults
with State and local officials early in the process of developing the
proposed regulation.
EPA has concluded that this proposed rule does not have federalism
implications. It will not have substantial direct effects on the
states, on the relationship between the National Government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
EPA does not consider an annual impact of $2 million on States to be a
substantial effect. In addition, EPA does not expect this rule to have
any impact on local governments.
Further, the revised regulations would not alter the basic State-
Federal scheme established in the Clean Water Act under which EPA
authorizes States to carry out the NPDES permitting program. EPA
expects the revised regulations to have little effect on the
relationship between, or the distribution of power and responsibilities
among, the Federal and State governments. Thus, Executive Order 13132
does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249; November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA specifically solicits additional comment on this proposed rule from
tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This regulation is not subject to Executive Order 13045 because it
is not economically significant as defined under E.O. 12866, and
because the Agency does not have reason to believe the environmental
health and safety risks addressed by this action present a
disproportionate risk to children. The benefits analysis performed for
the 2003 CAFO rule determined that the rule would result in certain
significant benefits to children's health. (Please refer to the
Benefits Analysis in the record for the 2003 CAFO final rule.)
[[Page 75779]]
Since today's action would not affect the environmental benefits of the
rule, these benefits are retained.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule would not be subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standard bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
List of Subjects
40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 412
Environmental protection, Feedlots, Livestock, Waste treatment and
disposal, Water pollution control.
Dated: December 15, 2005.
Stephen L. Johnson,
Administrator.
For the reasons stated in the preamble, the Environmental
Protection Agency proposes to amend 40 CFR parts 122 and 412 as
follows:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Amend Sec. 122.21 by revising paragraph (i)(1)(x) to read as
follows:
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25).
* * * * *
(i) * * *
(1) * * *
(x) For CAFOs that must seek coverage under a permit after March
30, 2007, certification that a nutrient management plan has been
completed and will be implemented upon the date of permit coverage.
* * * * *
3. Sections 122.23 (g)(2) and (g)(3)(iii) are revised to read as
follows:
Sec. 122.23 Concentrated animal feeding operations (applicable to
State NPDES programs, see Sec. 123.25).
* * * * *
(g) * * *
(1) * * *
(2) Operations defined as CAFOs as of April 14, 2003, who were not
defined as CAFOs prior to that date. For all CAFOs, the owner or
operator of the CAFO must seek to obtain coverage under an NPDES permit
by a date specified by the Director, but no later than March 30, 2007.
(3) * * *
(iii) If an operational change that makes the operation a CAFO
would not have made it a CAFO prior to April 14, 2003, the operation
has until March 30, 2007, or 90 days after becoming defined as a CAFO,
whichever is later.
* * * * *
4. Section 122.42 is amended by revising the third sentence in
paragraph (e)(1) introductory text to read as follows:
Sec. 122.42 Additional conditions applicable to specified categories
of NPDES permits (applicable to State NPDES programs, see Sec.
123.25).
* * * * *
(e) * * *
(1) * * * Permitted CAFOs must have their nutrient management plans
developed and implemented by March 30, 2007. CAFOs that seek to obtain
coverage under a permit after March 30, 2007 must have a nutrient
management plan developed and implemented upon the date of permit
coverage. * * *
* * * * *
PART 412--CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFO) POINT
SOURCE CATEGORY
1. The authority citation for part 412 continues to read as
follows:
Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, 1361.
2. Amend Sec. 412.31 by revising paragraph (b)(3) to read as
follows:
Sec. 412.31 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).
* * * * *
(b) * * *
(3) The CAFO shall attain the limitations and requirements of this
paragraph by March 30, 2007.
3. Amend Sec. 412.43 by revising paragraph (b)(2) to read as
follows:
Sec. 412.43 Effluent limitations attainable by the application of the
best practicable control technology currently available (BPT).
* * * * *
(b) * * *
(2) The CAFO shall attain the limitations and requirements of this
paragraph by March 30, 2007.
[FR Doc. 05-24303 Filed 12-20-05; 8:45 am]
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