[Federal Register Volume 74, Number 56 (Wednesday, March 25, 2009)]
[Notices]
[Pages 12849-12851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6673]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8780-6]
Draft National Pollutant Discharge Elimination System (NPDES)
General Permit for Discharges From Horse, Cattle and Dairy Cows, Swine,
Poultry, and Veal Calf Concentrated Animal Feeding Operations (CAFOs)
in Oklahoma (Except Indian Country)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed permit issuance.
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SUMMARY: EPA Region 6 Water Quality Protection Division, today is
proposing for public comment the issuance of a National Pollutant
Discharge Elimination System general permit for discharges from
eligible owners/operators of existing concentrated animal feeding
operations (CAFOs), in Oklahoma, except those discharges on Indian
Country. CAFOs discharging on Indian Country would be required to apply
for an individual permit.
All currently operating animal feeding operations that are defined
as CAFOs or designated as CAFOs by the permitting authority (See Part
VII Definitions, ``CAFOs'') and that are subject to 40 CFR Part 412,
Subpart A (Horses), Subpart C (Dairy Cows and Cattle Other than Veal
Calves), and Subpart D (Swine, Poultry, and Veal Calves) are eligible
for coverage under this permit. Hereinafter, this NPDES general permit
will be referred to as ``permit'' or ``CAFO permit'' or ``CAFO general
permit.'' Eligible CAFOs may apply for authorization under the terms
and conditions of this permit, by submitting a notice of intent (NOI)
to be covered by this permit. This permit covers animal feeding
operations listed above which meet the definition of a CAFO and
discharge or propose to discharge pollutants to waters of the United
States. A CAFO proposes to discharge if it is designed, constructed,
operated, or maintained such that a discharge will occur.
To determine whether your facility is regulated by this action, you
should carefully examine the definition of ``concentrated animal
feeding operation'' in existing EPA regulations at 40 CFR 122.23. (also
found in Part VII of the draft permit). If you have questions regarding
the applicability of this action to a particular entity, consult the
person listed for technical information in the preceding FOR FURTHER
INFORMATION CONTACT section.
This permit was originally issued in the Federal Register at 58 FR
7610 with an effective date of March 10, 1993, and an expiration date
of March 10, 1998. Applicable requirements from that 1993 permit are
continued in the proposed
[[Page 12850]]
permit. The proposed permit adds additional requirements contained in
revised CAFO regulations at 40 CFR 122 and 412 which were published in
the Federal Register at 73 FR 70,418 (November 20, 2008).
The permit adds new requirements relating to Nutrient Management
Plans (NMPs) for permitted CAFOs. CAFO operators were required to
develop and implement NMPs under the 2003 rule; the 2008 rule requires
CAFOs to submit the NMPs along with their notice of intent (NOI). EPA
Region 6 as the permitting authority will review the NMPs submitted
along with the NOIs and will also establish the terms of the NMP that
are enforceable elements of the permit. The region will provide the
public with an opportunity for meaningful review and comment on the
NMPs and the terms of the NMPs will be incorporated into the permit.
DATES: Comments must be submitted in writing to EPA on or before April
24, 2009.
Proposed Documents: The proposed general permit and fact sheet
which sets forth principal facts and the significant factual, legal,
and policy questions considered in the development of the proposed
general permit, may both be obtained via the Internet at http://www.epa.gov/region6/water/npdes/cafo/index.htm. To obtain hard copies
of these documents or any other information in the administrative
record, please contact Ms. Diane Smith using the contact information
provided below.
How Do I Comment on This Proposal?
Comment Submittals: Submit your comments, by one of the following
methods:
E-mail: [email protected].
Mail: Ms. Diane Smith, Environmental Protection Agency,
Water Quality Protection Division (6WQ-NP), 1445 Ross Ave., Suite 1200,
Dallas, TX 75202.
Hand Delivery: EPA Region 6, 7th Floor Reception Desk,
1445 Ross Ave., Suite 1200, Dallas, TX 75202. Such deliveries are only
accepted during normal business hours.
For Technical Information Contact: Scott Stine, NPDES Permits and
TMDL Branch (6WQ-PP), Environmental Protection Agency, 1445 Ross Ave.,
Suite 1200, Dallas, TX 75202; telephone number: (214) 665-7182; fax
number: (214) 665-2191; e-mail address: [email protected].
Administrative Record: All documents and references used in the
development of this permit are part of the Administrative Record for
this permit. 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 materials are available either electronically or in hard copy
from Ms. Diane Smith at the address above. The Administrative Record
may also be viewed at the EPA Region 6 Offices from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. For more
information on scheduling a time to view the Record or to obtain copies
of available documents, please contact Ms. Diane Smith at 214-665-2145
or [email protected].
Public Hearings
EPA has not scheduled any public hearings to receive public comment
concerning the proposed permit. All persons will continue to have the
right to provide written comments during the public comment period.
However, interested persons may request a public hearing pursuant to 40
CFR 124.12 concerning the proposed permit. Requests for a public
hearing must be sent or delivered in writing to the same address as
provided above for public comments prior to the close of the comment
period. Requests for a public hearing must state the nature of the
issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12,
EPA shall hold a public hearing if it finds, on the basis of requests,
a significant degree of public interest in a public hearing on the
proposed permit. If EPA decides to hold a public hearing, a public
notice of the date, time and place of the hearing will be made at least
30 days prior to the hearing. Any person may provide written or oral
statements and data pertaining to the proposed permit at the public
hearing.
III. Compliance With the Regulatory Flexibility Act
EPA's Approach to Compliance With the Regulatory Flexibility Act for
General Permits
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment 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.
The legal question of whether a general permit (as opposed to an
individual permit) qualifies as a ``rule'' or as an ``adjudication''
under the Administrative Procedure Act (APA) has been the subject of
periodic litigation. In a recent case, the court held that the CWA
Section 404 Nationwide general permit before the court did qualify as a
``rule'' and therefore that the issuance of that general permit needed
to comply with the applicable legal requirements for the issuance of a
``rule.'' National Ass'n of Home Builders v. U.S. Army Corps of
Engineers, 417 F.3d 1272, 1284-85 (DC Cir.2005) (Army Corps general
permits under Section 404 of the Clean Water Act are rules under the
APA and the Regulatory Flexibility Act; ``Each NWP [nationwide permit]
easily fits within the APA's definition `rule.' * * * As such, each NWP
constitutes a rule * * *'').
As EPA stated in 1998, ``the Agency recognizes that the question of
the applicability of the APA, and thus the RFA, to the issuance of a
general permit is a difficult one, given the fact that a large number
of dischargers may choose to use the general permit.'' 63 FR 36489,
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES
general permitting actions and related statements in the Federal
Register or elsewhere,'' and stated that ``[t]his review suggests that
the Agency has generally treated NPDES general permits effectively as
rules, though at times it has given contrary indications as to whether
these actions are rules or permits.'' Id. at 36496. Based on EPA's
further legal analysis of the issue, the Agency ``concluded, as set
forth in the proposal, that NPDES general permits are permits [i.e.,
adjudications] under the APA and thus not subject to APA rulemaking
requirements or the RFA.'' Id. Accordingly, the Agency stated that
``the APA's rulemaking requirements are inapplicable to issuance of
such permits,'' and thus ``NPDES permitting is not subject to the
requirement to publish a general notice of proposed rulemaking under
the APA or any other law * * * [and] it is not subject to the RFA.''
Id. at 36497.
However, the Agency went on to explain that, even though EPA had
concluded that it was not legally required to do so, the Agency would
voluntarily perform the RFA's small-entity impact analysis. Id. EPA
explained the strong public interest in the Agency following the RFA's
requirements on a voluntary basis: ``[The notice and comment] process
also provides an opportunity for EPA to consider the potential impact
of general
[[Page 12851]]
permit terms on small entities and how to craft the permit to avoid any
undue burden on small entities.'' Id. Accordingly, with respect to the
NPDES permit that EPA was addressing in that Federal Register notice,
EPA stated that ``the Agency has considered and addressed the potential
impact of the general permit on small entities in a manner that would
meet the requirements of the RFA if it applied.'' Id.
Subsequent to EPA's conclusion in 1998 that general permits are
adjudications rather than rules, as noted above, the DC Circuit
recently held that nationwide general permits under section 404 are
``rules'' rather than ``adjudications.'' Thus, this legal question
remains ``a difficult one'' (supra). However, EPA continues to believe
that there is a strong public policy interest in EPA applying the RFA's
framework and requirements to the Agency's evaluation and consideration
of the nature and extent of any economic impacts that a CWA general
permit could have on small entities (e.g., small businesses). In this
regard, EPA believes that the Agency's evaluation of the potential
economic impact that a general permit would have on small entities,
consistent with the RFA framework discussed below, is relevant to, and
an essential component of, the Agency's assessment of whether a CWA
general permit would place requirements on dischargers that are
appropriate and reasonable. Furthermore, EPA believes that the RFA's
framework and requirements provide the Agency with the best approach
for the Agency's evaluation of the economic impact of general permits
on small entities. While using the RFA framework to inform its
assessment of whether permit requirements are appropriate and
reasonable, EPA will also continue to ensure that all permits satisfy
the requirements of the Clean Water Act. Accordingly, EPA has committed
to operating in accordance with the RFA's framework and requirements
during the Agency's issuance of CWA general permits (in other words,
the Agency has committed that it will apply the RFA in its issuance of
general permits as if those permits do qualify as ``rules'' that are
subject to the RFA).
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: March 4, 2009.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
[FR Doc. E9-6673 Filed 3-24-09; 8:45 am]
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