Revised Compliance Dates Under the National Pollutant Discharge Elimination System Permit Regulations and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations, 40245-40250 [E7-14258]

Download as PDF 40245 Federal Register / Vol. 72, No. 141 / Tuesday, July 24, 2007 / Rules and Regulations enter into a safety zone, the designated representative may be contacted on VHF channel 16. (2) Between scheduled events, the Coast Guard Patrol Commander may permit traffic to resume normal operations for a limited time. (3) A succession of not fewer than 5 short whistle or horn blasts from a Coast Guard patrol vessel will be the signal for any and all vessels within the safety zone defined in paragraph (a) to take immediate steps to avoid collision. (d) Enforcement Period. This temporary safety zone will be enforced between the hours of 7 p.m. to 11 p.m. on the following days: June 30, July 28, and August 25, 2007. (e) Effective Dates. This rule is effective from 7 p.m. on June 30, 2007 until 11 p.m. on August 25, 2007. Dated: June 27, 2007. K.L. Schultz, Captain, U.S. Coast Guard, Captain of the Port Miami, FL. [FR Doc. E7–14265 Filed 7–23–07; 8:45 am] BILLING CODE 4910–15–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 122 and 412 [EPA–HQ–OW–2005–0036; FRL–8444–8] RIN 2040–AE92 Revised Compliance Dates Under the National Pollutant Discharge Elimination System Permit Regulations and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: This rule extends certain compliance dates in the National Pollutant Discharge Elimination System (NPDES) permitting requirements and Effluent Limitations Guidelines and Standards (ELGs) for concentrated animal feeding operations (CAFOs) SUMMARY: while EPA works to complete rulemaking to respond to the decision of the U.S. Court of Appeals for the Second Circuit in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005). The sole purpose of this rule is to address timing issues associated with the Agency’s response to the Waterkeeper decision. This final rule revises the dates established in the 2003 CAFO rule and later modified by a rule published in the Federal Register on February 10, 2006, by which facilities newly defined as CAFOs are required to seek permit coverage and by which all permitted CAFOs are required to develop and implement their nutrient management plans (NMPs). EPA is extending 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 July 31, 2007, to February 27, 2009. EPA is also amending 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 July 31, 2007, to February 27, 2009. Finally, EPA is extending the deadline by which permitted CAFOs are required to develop and implement NMPs, from July 31, 2007, to February 27, 2009. EFFECTIVE DATE: This rule is effective as of July 24, 2007. ADDRESSES: EPA established a docket for this action under Docket ID No. EPA–OW–2005–0036. This is where you can obtain a copy of all materials related to this rulemaking, including the comment response document and the rule. All documents in the docket are listed on the www.regulations.gov Web site. 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, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically at www.regulations.gov or in hard copy at the Water Docket in the EPA Docket Center, EPA West, Room 3334, 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: Rebecca Roose, Water Permits Division, Office of Wastewater Management (4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564–0758, e-mail address: roose.rebecca@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information Does This Action Apply to Me? II. Background A. The Clean Water Act B. History of Actions To Address CAFOs Under the NPDES Permitting Program C. Status of EPA’s Response to the Waterkeeper Decision D. History of CAFO Compliance Dates E. Proposed Rule III. This Final Rule A. New Deadlines for Permit Applications and for Permitted CAFOs To Develop and Implement Nutrient Management Plans 1. Application Deadline for Newly Defined CAFOs 2. Deadline for Nutrient Management Plans B. Rationale for This Action IV. Effective Date of This Action V. Statutory and Executive Order Reviews I. General Information 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 pwalker on PROD1PC71 with RULES Category Federal, State, and Local Government Industry ............................................ VerDate Aug<31>2005 17:17 Jul 23, 2007 North American industry code (NAIC) Examples of regulated entities Operators of animal production operations that meet the definition of a CAFO. Beef cattle feedlots (including veal) ................................................... Beef cattle ranching and farming ....................................................... Hogs ................................................................................................... Jkt 211001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\24JYR1.SGM 24JYR1 112112 112111 11221 Standard industrial classification code 0211 0212 0213 40246 Federal Register / Vol. 72, No. 141 / Tuesday, July 24, 2007 / Rules and Regulations TABLE 1.—ENTITIES POTENTIALLY REGULATED BY THIS RULE—Continued Category North American industry code (NAIC) Examples of regulated entities Sheep ................................................................................................. General livestock except dairy and poultry ........................................ Dairy farms ......................................................................................... Broilers, fryers, and roaster chickens ................................................ Chicken eggs ..................................................................................... Turkey and turkey eggs ..................................................................... Poultry hatcheries .............................................................................. Poultry and eggs ................................................................................ Ducks ................................................................................................. Horses and other equines .................................................................. 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 this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility may be 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. 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 its core provisions, the CWA established 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. EPA has issued comprehensive regulations that implement the NPDES program at 40 CFR parts 122–124. The Act also provided for the development of technology-based and water qualitybased effluent limitations that are imposed through NPDES permits to control the discharge of pollutants from point sources. CWA section 301(a) and (b). pwalker on PROD1PC71 with RULES B. History of Actions To Address CAFOs Under the NPDES Permitting Program EPA’s regulation of wastewater and manure from CAFOs dates from the 1970s. EPA initially issued national effluent limitations guidelines and standards for feedlots on February 14, 1974, (39 FR 5704) and NPDES CAFO VerDate Aug<31>2005 17:17 Jul 23, 2007 Jkt 211001 regulations on March 18, 1976 (41 FR 11458). In February 2003, EPA revised these regulations. 68 FR 7176 (the ‘‘2003 CAFO rule’’). The 2003 CAFO rule required owners or operators of all CAFOs 1 to seek coverage under an NPDES permit, unless they demonstrated no potential to discharge. CAFO industry organizations (American Farm Bureau Federation, National Pork Producers Council, National Chicken Council, and National Turkey Federation (NTF), although NTF later withdrew its petition) and several 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/or remanded others. Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005) (hereinafter Waterkeeper). Notably, the court vacated the requirement that all CAFOs apply for an NPDES permit unless a CAFO demonstrates no potential to discharge. The court also remanded the rule for failing to require incorporation of the terms of CAFOs’ nutrient management plans (NMPs) into their permits and for failing to prescribe public review and comment and permitting authority approval of the terms of the NMPs. Other provisions were remanded for further clarification and analysis. C. Status of EPA’s Response to the Waterkeeper Decision On June 30, 2006, EPA published a proposed rule to revise several aspects 1 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. PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 11241, 11242 11299 11212 11232 11231 11233 11234 11239 112390 11292 Standard industrial classification code 0214 0219 0241 0251 0252 0253 0254 0259 0259 0272 of the Agency’s regulations governing discharges from CAFOs in response to the Waterkeeper decision. 71 FR 37744. EPA is briefly describing the proposed revisions to the 2003 CAFO here for context only. The proposed provisions in response to the Waterkeeper decision are beyond the scope of this final rule, and EPA is not addressing those provisions in this final rule. In summary, EPA proposed to require only owners or operators of those CAFOs that discharge or propose to discharge to seek authorization to discharge under a permit. Second, EPA proposed to require CAFOs seeking authorization to discharge under individual permits to submit their NMPs with their permit applications or, under general permits, with their notices of intent. Permitting authorities would be required to review the NMP and provide the public with an opportunity for meaningful public review and comment. Permitting authorities would also be required to incorporate terms of the NMP as NPDES permit conditions. The proposed rule also addressed the remand of issues for further clarification and analysis. These issues concern clarifications regarding the applicability of water quality-based effluent limitations (WQBELs); new source performance standards for swine, poultry, and veal CAFOs; and ‘‘best conventional technology’’ effluent limitations guidelines for fecal coliform. The June 2006 proposed rule reflected the dates for compliance as revised on February 10, 2006 (71 FR 6978), i.e., July 31, 2007, for permit application by newly defined CAFOs and NMP development and implementation by all permitted CAFOs. The public comment period for the June 2006 CAFO proposed rule closed on August 29, 2006. EPA will respond to the comments received when it takes final action on the June 30, 2006, proposed rule. See docket EPA–HQ–OW–2005– 0037. E:\FR\FM\24JYR1.SGM 24JYR1 pwalker on PROD1PC71 with RULES Federal Register / Vol. 72, No. 141 / Tuesday, July 24, 2007 / Rules and Regulations D. History of CAFO Compliance Dates The 2003 CAFO rule amended the definition of ‘‘CAFO’’ to add facilities that had not previously been defined as CAFOs (in the 1976 regulations). 40 CFR 122.23(b). Operations newly defined as CAFOs in the 2003 CAFO rule included veal operations, swine weighing less than 55 pounds, chicken and layer operations using other than liquid manure handling systems, and animal feeding operations (AFOs) that were previously not defined as CAFOs because they discharged only in the event of a 25-year/24-hour storm. CAFOs in these categories that were in existence when the 2003 CAFO rule took effect (April 14, 2003) represent the group of CAFOs that were initially subject to a February 13, 2006, deadline to apply for an NPDES permit. 68 FR 7267. In addition, other existing facilities that became defined as CAFOs under the revised CAFO definitions in the 2003 CAFO rule include so-called ‘‘new dischargers’’ that, subsequent to the effective date of the 2003 CAFO rule, have become CAFOs due to changes in their operations, where such changes would not have made the operation a CAFO prior to April 14, 2003. This second group of facilities was initially required to seek permit coverage by April 13, 2006, or 90 days after becoming defined as a CAFO, whichever date is later. 68 FR 7268. Thus, each of these groups of CAFOs were allowed three years from the 2003 rule to seek authorization to discharge under an NPDES permit when EPA issued the 2003 CAFO rule. EPA reasoned in the 2003 CAFO rule, and reiterated in the February 2006 date change rule, that allowing newly regulated entities three years to come into compliance was consistent with Congressional intent, as expressed in the Clean Water Act with respect to newly established point sources. Moreover, the Agency stated that the three-year timeframe was necessary for States authorized to administer the NPDES permit program to provide permit coverage for CAFOs that were not previously required to be permitted and to revise State regulatory programs. 68 FR 7204. In addition to the requirements to seek permit coverage, the 2003 CAFO rule also required all permitted CAFOs to develop and implement NMPs by December 31, 2006. EPA believed that this date was reasonable given that CAFOs would have had a little over three and a half years from the issuance of the 2003 rule to develop and implement an NMP. This time frame allowed States to update their NPDES VerDate Aug<31>2005 17:17 Jul 23, 2007 Jkt 211001 programs and issue permits to reflect the NMP requirements of the 2003 CAFO rule. It also provided flexibility for permitting authorities to establish permit schedules based on specific circumstances, such as prioritization of nutrient management plan development and implementation based on sitespecific water quality risks and the available infrastructure for development of NMPs. The timing of these compliance deadlines was affected by EPA’s need to revise the CAFO rule as a result of the Second Circuit’s decision in the Waterkeeper case. On February 10, 2006, prior to the Agency’s June 2006 proposed rule responding to the Waterkeeper decision, EPA promulgated a rule to revise each of the compliance dates in the 2003 CAFO rule that were affected by the decision (hereinafter ‘‘2006 date rule’’). 71 FR 6978. Specifically, EPA extended the dates for those newly defined CAFOs described above to seek NPDES permit coverage and the date by which all CAFOs must develop and implement NMPs. EPA revised these dates in order to: (1) Provide the Agency sufficient time to take final action on the regulatory revisions with respect to the Waterkeeper decision; and (2) require NMPs to be submitted at the time of the permit application, consistent with the court’s decision. It was necessary for EPA to revise the dates separately from addressing the rest of the issues raised by the Waterkeeper decision because EPA had not completed the final rule responding to the Waterkeeper decision prior to the dates by which newly defined CAFOs were required to seek permit coverage under the 2003 rule. E. Proposed Rule On May 10, 2007, EPA proposed to further extend only the date by which certain operations must seek authorization to discharge under an NPDES permit and the date by which all permitted CAFOs must develop and implement their NMPs.2 EPA proposed to revise these compliance dates because EPA would not complete a final rule revising the 2003 CAFO rule before the July 31, 2007, deadlines. The public comment period closed on June 11, 2007. EPA received a total of 17 comments on the May 10, 2007, proposed rule. 2 Note that in response to the Waterkeeper decision, EPA proposed a variation to the ‘‘develop and implement’’ language of the June 2006 proposal which stated that a CAFO operator must submit an NMP with its permit application or NOI and that it must be implemented upon permit coverage. 71 FR 37744. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 40247 III. This Final Rule A. New Deadlines for Permit Applications and for Permitted CAFOs To Develop and Implement Nutrient Management Plans This final rule extends certain dates for compliance specified in the 2003 CAFO rule and amended by the 2006 date rule. Because EPA will not have completed the rulemaking responding to the Waterkeeper decision prior to the dates by which newly defined CAFOs must seek permit coverage, the Agency is revising these dates to a time that is subsequent to the forthcoming CAFO rule revision. This rule amends the section detailing when operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to that date, and operations that become CAFOs after that date due to operational changes that would not have made then a CAFO prior to April 14, 2003, and that are not new sources must seek NPDES permit coverage. Second, EPA is amending the deadline by which permitted CAFOs are required to develop and implement NMPs. This final rule does not modify or otherwise affect any other existing regulatory provisions, nor does it promulgate any regulatory provisions associated with the proposed rule in response to the Waterkeeper decision, published on June 30, 2006. 71 FR 37744. 1. Application Deadline for Newly Defined CAFOs EPA is extending 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 July 31, 2007, to February 27, 2009. This deadline, found at 40 CFR 122.23(g)(2), applies to ‘‘dry’’ chicken operations, stand-alone immature swine, heifer and calf operations, and those animal feeding operations (AFOs) that were entitled to the permitting exemption for discharging only in the event of a 25year, 24-hour storm. EPA is also amending the date by which operations that became defined as CAFOs after April 14, 2003, or that will become CAFOs 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 July 31, 2007, to February 27, 2009. An example of an operation affected by this deadline, which is found at 40 CFR 122.23(g)(3)(iii), is an AFO that increases the number of animals in confinement to a level that would result in the operation becoming defined as a CAFO. E:\FR\FM\24JYR1.SGM 24JYR1 40248 Federal Register / Vol. 72, No. 141 / Tuesday, July 24, 2007 / Rules and Regulations This final rule does not affect the applicable time for seeking permit coverage for newly constructed CAFOs not subject to new source performance standards (NSPS) or for new source CAFOs subject to NSPS that discharge or propose to discharge, even those in categories that were added to the definition of a CAFO in the 2003 CAFO rule. Those CAFOs are required by 40 CFR 122.21(a) and 123.23(g)(3)(i) and (g)(4) to seek NPDES permit coverage at least 180 days prior to the time that they commence operating. This final rule does not supersede State requirements. States may choose to require CAFOs to obtain NPDES permits in advance of the dates set in the federal NPDES regulations. Further, CAFOs that are already permitted, e.g., CAFOs that existed prior to the effective date of the 2003 CAFO rule and have been required to seek NPDES permit coverage even before EPA issued the 2003 CAFO rule, continue to be required to maintain permit coverage pursuant to § 122.23(h). EPA is also correcting a typographical error that was created in the 2006 date rule. In that rule, 40 CFR 122.23(g)(1) as promulgated in the 2003 CAFO rule (which provides that existing operations defined as CAFOs prior to April 14, 2003, must seek permit coverage by the effective date of the 2003 rule) was inadvertently replaced with 40 CFR 122.23(g)(2) (which provides extended compliance dates for operations defined as CAFOs as of April 14, 2003, which were not defined as CAFOs prior to that date). Because the ‘‘(2)’’ was erroneously printed as ‘‘(1)’’, § 122.23(g)(1) was overwritten and § 122.23(g)(2) was incorrectly left unchanged. As a result, the rule following the February 2006 date extension contained two provisions applicable to ‘‘Operations defined as CAFOs as of April 14, 2003, who were not defined as CAFOs prior to that date’’ with conflicting dates. EPA is restoring the original § 122.23(g)(1), as promulgated in 2003, and revising the date in § 122.23(g)(2) to reflect the date extension finalized by this rule. pwalker on PROD1PC71 with RULES 2. Deadline for Nutrient Management Plans EPA is extending the deadline by which permitted CAFOs are required to develop and implement NMPs, from July 31, 2007, to February 27, 2009. This action revises all references to the date by which CAFOs must develop and implement NMPs currently in 40 CFR parts 122 and 412. Thus, this rule revises the deadlines found in 40 CFR 122.21(i)(1)(x), 122.42(e)(1), 412.31(b)(3), and 412.43(b)(2). VerDate Aug<31>2005 17:17 Jul 23, 2007 Jkt 211001 This final rule does not supersede State requirements, nor does it 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, or their applicable State requirements. This rule also does not affect the existing applicable land application limitations and requirements for all CAFOs subject to the new source performance standards under 40 CFR 412.35 and 40 CFR 412.46. Upon permit coverage, new sources must meet all relevant land application requirements. B. Rationale for This Action The amount of time needed to revise the rule in response to the Waterkeeper decision has been greater than EPA anticipated at the time it promulgated the 2006 date rule. At the time of the 2006 date rule, EPA believed that July 31, 2007, would allow sufficient time for the Agency to complete the rulemaking to address the Waterkeeper decision. EPA also anticipated that the dates established in the 2006 date rule provided sufficient time to ensure compliance with the NPDES regulations within a reasonable timeframe consistent with the dates established in the 2003 CAFO rule. 71 FR 6980–81. However, at that time EPA had not yet proposed revisions to the CAFO rule and could only surmise what the public response to the proposal would be. In light of comments received and after further consideration of the proposed rule, EPA is continuing to explore the best method of implementing the Waterkeeper decision. To avoid any potential conflict with existing deadlines that precede the publication of the final rule, it is appropriate to revise the CAFO compliance dates effected by this final rule. Some commenters on the proposed rule raised concerns about the proposed further delay and expressed interest in having the regulatory requirements implemented in a timely fashion. In EPA’s view, the deadlines established by this rule are appropriate. Newly defined facilities that are required to apply for an NPDES permit will need sufficient time to develop their permit applications or notices of intent for general permit authorization once EPA has finalized the revised rules in response to the Waterkeeper decision. The revised deadlines are also appropriate because permitting authorities will need time following promulgation of the CAFO regulatory PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 revisions to identify the necessary procedures for reviewing NMPs and incorporating them into general permits. Taking into account the time EPA needs to complete the rule in response to Waterkeeper and the comments submitted on that proposed rule, as well as the period of time after the final rule is promulgated to allow States, the regulated community, and other stakeholders the opportunity to adjust to the new regulatory requirements, EPA believes that extending the dates to February 27, 2009, is reasonable. Several commenters indicated that as a result of the Second Circuit’s decision vacating the duty to apply provision for CAFOs established in the 2003 rule, the deadlines for CAFOs to seek coverage, also initially established in that rule, are now unnecessary. These commenters suggested that EPA should eliminate the deadlines for CAFOs to seek coverage in 40 CFR 122.23(g)(2)–(3), such that only CAFOs that discharge or propose to discharge would be required to seek coverage in accordance with the timing requirements for all NPDES sources in 40 CFR 122.21(c). Several other commenters sought clarity of the duty to apply provision following the Waterkeeper decision. These comments are beyond the scope of this rulemaking. EPA reiterates that it will address the various aspects of the court’s Waterkeeper decision, including the ruling on the ‘‘duty to apply’’ issue, in the final rule in response to Waterkeeper. There were a few commenters who requested that EPA provide greater clarity regarding the applicability of the deadline extensions to various classifications of CAFOs. As described above, the February 27, 2009, permit application deadlines revised in this rule do not apply to CAFOs that were defined as CAFOs prior to the 2003 rule, nor do the deadlines affect new sources subject to new source performance standards. The deadlines revised by this rule for developing and implementing NMPs apply to all permitted CAFOs, except that new sources subject to new source performance standards must develop and implement an NMP upon permit coverage. Several commenters expressed the view that EPA needed to take into consideration the time necessary for States to make conforming revisions to State programs following EPA’s regulatory revisions and, accordingly, extend the deadlines to a date two to three years after EPA intends to publish the final rule in response to Waterkeeper. While EPA agrees that some States may need additional time to modify their programs once EPA has E:\FR\FM\24JYR1.SGM 24JYR1 pwalker on PROD1PC71 with RULES Federal Register / Vol. 72, No. 141 / Tuesday, July 24, 2007 / Rules and Regulations finalized its regulatory revisions in response to the Waterkeeper decision, the Agency does not agree that these concerns justify further extension of the compliance dates in this rule. EPA is committed to collaborating with States and other interested parties to work through the procedural challenges and resolve any difficulties that may arise in the implementation of the regulatory revisions. In addition, EPA notes that most of the technical provisions of the 2003 CAFO rule (e.g., the substantive NMP requirements) were unaffected by the Waterkeeper decision, and therefore CAFOs already have the information they need to develop NMPs, and do not need to wait for further EPA action before doing so. Several commenters were opposed to the proposed extension of the compliance dates and expressed concern that such an extension would reward discharging CAFOs that have not yet complied with permitting requirements and that by proposing the extension, EPA is exhibiting a lack of urgency to ensure that discharging CAFOs obtain NPDES permit coverage. In response, EPA notes that the deadline extension applies only to a specific subset of CAFOs, and moreover, nothing in today’s rule precludes a CAFO from applying for a permit or seeking authorization to discharge under a general permit (if available) before the February 27, 2009 date. As stated above, this final rule affects only certain compliance dates associated with the timing of EPA’s final rule revisions in response to the Waterkeeper decision. EPA is working to promulgate those revisions as expeditiously as possible, while giving due attention to the comments received on the June 2006 proposal. EPA is committed to finalizing the rulemaking process and to working with States and agricultural partners to ensure timely development of permit applications and NMPs where necessary. Moreover, many States are actively implementing the CAFO program and issuing permits, and the provisions of this final rule do not supersede existing State requirements. One comment expressed the view that EPA had made an incorrect statement in the preamble to the May 10, 2007, proposed rule regarding the ability of authorized States to require CAFOs to seek NPDES permit coverage in advance of the dates set in the federal regulations. EPA disagrees. The federal regulations establish the outermost limit by which certain CAFOs subject to permitting requirements must seek permit coverage, leaving open all dates preceding the deadline of February 27, 2009. If, for example, a State with an VerDate Aug<31>2005 17:17 Jul 23, 2007 Jkt 211001 approved program were to continue to require newly defined CAFOs to seek permit coverage by July 31, 2007, such a requirement would be consistent with the federal requirement for newly defined CAFOs to seek permit coverage no later than February 27, 2009. IV. Effective Date of These Actions EPA is making this rule immediately effective upon the date of publication. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule ‘‘grants or recognizes an exemption or relieves a restriction’’ and section 553(d)(3) which allows an effective date less than 30 days after publication ‘‘as otherwise provided by the agency for good cause found and published with the rule.’’ EPA finds that there is good cause to make the rule effective immediately. The compliance deadlines being revised by this final rule require some CAFOs to seek NPDES permit coverage and prepare and implement nutrient management plans by July 31, 2007, before EPA regulations will be in place to respond to the Waterkeeper decision. Making this rule immediately effective is consistent with the purpose of the good cause exemption which is to provide reasonable time for affected parties to comply. A delayed effective date is not necessary because affected parties do not have to take any action to comply with this rule which simply extends deadlines for seeking NPDES permit coverage and developing and implementing nutrient management plans. In addition, consistent with section 553(d)(3), an immediate effective date is justified because this rule relieves certain CAFOs of obligations which would otherwise apply to them, to seek NPDES permit coverage and develop and implement nutrient management plans by July 31, 2007. V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this rule is not a ‘‘significant regulatory action’’ and is therefore not subject to review under the Executive Order. As discussed above, the purpose of this rule is solely to address timing issues associated with the Agency’s response to the Waterkeeper court ruling on petitions for review challenging portions of the 2003 CAFO rule. After considering the economic impacts of this rule on small entities in accordance with the Regulatory Flexibility Act (5 U.S.C. 601 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 40249 et seq.), I certify that this action will not have a significant adverse impact on a substantial number of small entities since the effect of the final rule is solely to extend certain deadlines related to NPDES CAFO permitting. Additionally, this rule does not affect small governments, as the permitting authorities are State or Federal agencies. EPA has determined that this rule does 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. In addition, this action does not significantly or uniquely affect small governments. Thus, this final rule is not subject to sections 202, 203, or 205 of the Unfunded Mandates Reform Act of 1999 (Pub. L. 104–4). In addition, this rule does not have Tribal implications as specified in Executive Order 13175 (63 FR 67249, November 9, 2000) because it will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. This final rule does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999) because it does not impose substantial direct compliance costs on State or local governments, nor will it preempt State law. Thus, the requirements of sections 6(b) and 6(c) of the Executive Order do not apply to this rule. This final rule is not subject to Executive Order 13045 because it is not economically significant as defined under Executive Order 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. This final rule is not subject to Executive Order 12898 (59 FR 7629 (February 16, 1994)), which establishes federal executive policy on environmental justice. EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This final rule is not 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. This final rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. E:\FR\FM\24JYR1.SGM 24JYR1 40250 Federal Register / Vol. 72, No. 141 / Tuesday, July 24, 2007 / Rules and Regulations 272 note) do not apply. This final rule does not impose any new information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. section 3501 et seq.). 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. The Congressional Review Act, 5 U.S.C 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2) and will be effective on July 24, 2007. 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. § 122.21 [Amended] DEPARTMENT OF TRANSPORTATION 2. In § 122.21 paragraph (i)(1)(x), the date ‘‘July 31, 2007’’ is revised to read ‘‘February 27, 2009.’’ I 3. Section 122.23 is amended by revising paragraphs (g)(1), (g)(2), and (g)(3)(iii) to read as follows: I § 122.23 Concentrated animal feeding operations (applicable to State NPDES programs, see § 123.25). * * * * * (g) * * * (1) Operations defined as CAFOs prior to April 14, 2003. For operations that are defined as CAFOs under regulations that are in effect prior to April 14, 2003, the owner or operator must have or seek to obtain coverage under an NPDES permit as of April 14, 2003, and comply with all applicable NPDES requirements, including the duty to maintain permit coverage in accordance with paragraph (h) of this section. (2) Operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to that date. For all operations defined as CAFOs as of April 14, 2003, that were not defined as CAFOs prior to that date, 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 February 27, 2009. (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 February 27, 2009, or 90 days after becoming defined as a CAFO, whichever is later. * * * * * § 122.42 [Amended] 40 CFR Part 412 4. In § 122.42 paragraph (e)(1), the two dates ‘‘July 31, 2007’’ are revised to read ‘‘February 27, 2009.’’ Environmental protection, Feedlots, Livestock, Waste treatment and disposal, Water pollution control. PART 412—CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFO) POINT SOURCE CATEGORY Dated: July 18, 2007. Stephen L. Johnson, Administrator. 1. The authority citation for part 412 continues to read as follows: I For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR parts 122 and 412 as follows: pwalker on PROD1PC71 with RULES I PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM 1. The authority citation for part 122 continues to read as follows: I Authority: The Clean Water Act, 33 U.S.C. 1251 et seq. VerDate Aug<31>2005 17:17 Jul 23, 2007 I Jkt 211001 Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, 1361. § 412.31 [Amended] 2. In § 412.31 paragraph (b)(3), the date ‘‘July 31, 2007’’ is revised to read ‘‘February 27, 2009.’’ I § 412.43 [Amended] 3. In § 412.43 paragraph (b)(2), the date ‘‘July 31, 2007’’ is revised to read ‘‘February 27, 2009.’’ I [FR Doc. E7–14258 Filed 7–23–07; 8:45 am] BILLING CODE 6560–50–P PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 Federal Motor Carrier Safety Administration 49 CFR Part 390 Regulatory Guidance for Recording of Commercial Motor Vehicle Accidents Involving Fires Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Regulatory guidance. AGENCY: SUMMARY: The FMCSA announces regulatory guidance concerning its definition of ‘‘accident.’’ The regulatory guidance is presented in a question-andanswer form. The guidance is generally applicable to drivers, commercial motor vehicles, and motor carrier operations subject to the Federal Motor Carrier Safety Regulations. All prior interpretations and regulatory guidance concerning the term ‘‘accident’’ issued previously in the Federal Register, as well as memoranda and letters, may no longer be relied upon as authoritative if they are inconsistent with the guidance published today. This guidance will provide the motor carrier industry and Federal, State, and local law enforcement officials with uniform information for use in determining whether certain vehicle fires must be recorded on the motor carrier’s accident register and considered in applying the Agency’s safety fitness procedures. EFFECTIVE DATE: This regulatory guidance is effective on July 24, 2007. FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and Roadside Operations Division, Office of Bus and Truck Standards and Operations, (202) 366–4009, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590–0001. SUPPLEMENTARY INFORMATION: Legal Basis The Motor Carrier Safety Act of 1984 (Pub. L. 98–554, Title II, 98 Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary to prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles. At a minimum, the regulations shall ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) E:\FR\FM\24JYR1.SGM 24JYR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 72, Number 141 (Tuesday, July 24, 2007)]
[Rules and Regulations]
[Pages 40245-40250]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-14258]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 412

[EPA-HQ-OW-2005-0036; FRL-8444-8]
RIN 2040-AE92

Revised Compliance Dates Under the National Pollutant Discharge
Elimination System Permit Regulations and Effluent Limitations
Guidelines and Standards for Concentrated Animal Feeding Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule extends certain compliance dates in the National
Pollutant Discharge Elimination System (NPDES) permitting requirements
and Effluent Limitations Guidelines and Standards (ELGs) for
concentrated animal feeding operations (CAFOs) while EPA works to
complete rulemaking to respond to the decision of the U.S. Court of
Appeals for the Second Circuit in Waterkeeper Alliance et al. v. EPA,
399 F.3d 486 (2nd Cir. 2005). The sole purpose of this rule is to
address timing issues associated with the Agency's response to the
Waterkeeper decision.
This final rule revises the dates established in the 2003 CAFO rule
and later modified by a rule published in the Federal Register on
February 10, 2006, by which facilities newly defined as CAFOs are
required to seek permit coverage and by which all permitted CAFOs are
required to develop and implement their nutrient management plans
(NMPs). EPA is extending 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 July 31, 2007, to February
27, 2009. EPA is also amending 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 July 31, 2007,
to February 27, 2009. Finally, EPA is extending the deadline by which
permitted CAFOs are required to develop and implement NMPs, from July
31, 2007, to February 27, 2009.

EFFECTIVE DATE: This rule is effective as of July 24, 2007.

ADDRESSES: EPA established a docket for this action under Docket ID No.
EPA-OW-2005-0036. This is where you can obtain a copy of all materials
related to this rulemaking, including the comment response document and
the rule. All documents in the docket are listed on the
www.regulations.gov Web site. 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, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically at www.regulations.gov or
in hard copy at the Water Docket in the EPA Docket Center, EPA West,
Room 3334, 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: Rebecca Roose, Water Permits Division,
Office of Wastewater Management (4203M), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number: (202) 564-0758, e-mail address: roose.rebecca@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information
Does This Action Apply to Me?
II. Background
A. The Clean Water Act
B. History of Actions To Address CAFOs Under the NPDES
Permitting Program
C. Status of EPA's Response to the Waterkeeper Decision
D. History of CAFO Compliance Dates
E. Proposed Rule
III. This Final Rule
A. New Deadlines for Permit Applications and for Permitted CAFOs
To Develop and Implement Nutrient Management Plans
1. Application Deadline for Newly Defined CAFOs
2. Deadline for Nutrient Management Plans
B. Rationale for This Action
IV. Effective Date of This Action
V. Statutory and Executive Order Reviews

I. General Information

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
----------------------------------------------------------------------------------------------------------------
North Standard
American industrial
Category Examples of regulated entities industry code classification
(NAIC) code
----------------------------------------------------------------------------------------------------------------
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

[[Page 40246]]

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
----------------------------------------------------------------------------------------------------------------

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 this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility may be 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.

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 its core provisions, the CWA established 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. EPA
has issued comprehensive regulations that implement the NPDES program
at 40 CFR parts 122-124. The Act also provided 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 from 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 revised these regulations. 68 FR 7176 (the
``2003 CAFO rule''). The 2003 CAFO rule required owners or operators of
all CAFOs \1\ to seek coverage under an NPDES permit, unless they
demonstrated no potential to discharge. CAFO industry organizations
(American Farm Bureau Federation, National Pork Producers Council,
National Chicken Council, and National Turkey Federation (NTF),
although NTF later withdrew its petition) and several 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/or remanded others. Waterkeeper
Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005) (hereinafter
Waterkeeper). Notably, the court vacated the requirement that all CAFOs
apply for an NPDES permit unless a CAFO demonstrates no potential to
discharge. The court also remanded the rule for failing to require
incorporation of the terms of CAFOs' nutrient management plans (NMPs)
into their permits and for failing to prescribe public review and
comment and permitting authority approval of the terms of the NMPs.
Other provisions were remanded for further clarification and analysis.
---------------------------------------------------------------------------

\1\ 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.
---------------------------------------------------------------------------

C. Status of EPA's Response to the Waterkeeper Decision

On June 30, 2006, EPA published a proposed rule to revise several
aspects of the Agency's regulations governing discharges from CAFOs in
response to the Waterkeeper decision. 71 FR 37744. EPA is briefly
describing the proposed revisions to the 2003 CAFO here for context
only. The proposed provisions in response to the Waterkeeper decision
are beyond the scope of this final rule, and EPA is not addressing
those provisions in this final rule.
In summary, EPA proposed to require only owners or operators of
those CAFOs that discharge or propose to discharge to seek
authorization to discharge under a permit. Second, EPA proposed to
require CAFOs seeking authorization to discharge under individual
permits to submit their NMPs with their permit applications or, under
general permits, with their notices of intent. Permitting authorities
would be required to review the NMP and provide the public with an
opportunity for meaningful public review and comment. Permitting
authorities would also be required to incorporate terms of the NMP as
NPDES permit conditions. The proposed rule also addressed the remand of
issues for further clarification and analysis. These issues concern
clarifications regarding the applicability of water quality-based
effluent limitations (WQBELs); new source performance standards for
swine, poultry, and veal CAFOs; and ``best conventional technology''
effluent limitations guidelines for fecal coliform. The June 2006
proposed rule reflected the dates for compliance as revised on February
10, 2006 (71 FR 6978), i.e., July 31, 2007, for permit application by
newly defined CAFOs and NMP development and implementation by all
permitted CAFOs. The public comment period for the June 2006 CAFO
proposed rule closed on August 29, 2006. EPA will respond to the
comments received when it takes final action on the June 30, 2006,
proposed rule. See docket EPA-HQ-OW-2005-0037.

[[Page 40247]]

D. History of CAFO Compliance Dates

The 2003 CAFO rule amended the definition of ``CAFO'' to add
facilities that had not previously been defined as CAFOs (in the 1976
regulations). 40 CFR 122.23(b). Operations newly defined as CAFOs in
the 2003 CAFO rule included veal operations, swine weighing less than
55 pounds, chicken and layer operations using other than liquid manure
handling systems, and animal feeding operations (AFOs) that were
previously not defined as CAFOs because they discharged only in the
event of a 25-year/24-hour storm. CAFOs in these categories that were
in existence when the 2003 CAFO rule took effect (April 14, 2003)
represent the group of CAFOs that were initially subject to a February
13, 2006, deadline to apply for an NPDES permit. 68 FR 7267. In
addition, other existing facilities that became defined as CAFOs under
the revised CAFO definitions in the 2003 CAFO rule include so-called
``new dischargers'' that, subsequent to the effective date of the 2003
CAFO rule, have become CAFOs due to changes in their operations, where
such changes would not have made the operation a CAFO prior to April
14, 2003. This second group of facilities was initially required to
seek permit coverage by April 13, 2006, or 90 days after becoming
defined as a CAFO, whichever date is later. 68 FR 7268. Thus, each of
these groups of CAFOs were allowed three years from the 2003 rule to
seek authorization to discharge under an NPDES permit when EPA issued
the 2003 CAFO rule.
EPA reasoned in the 2003 CAFO rule, and reiterated in the February
2006 date change rule, that allowing newly regulated entities three
years to come into compliance was consistent with Congressional intent,
as expressed in the Clean Water Act with respect to newly established
point sources. Moreover, the Agency stated that the three-year
timeframe was necessary for States authorized to administer the NPDES
permit program to provide permit coverage for CAFOs that were not
previously required to be permitted and to revise State regulatory
programs. 68 FR 7204.
In addition to the requirements to seek permit coverage, the 2003
CAFO rule also required all permitted CAFOs to develop and implement
NMPs by December 31, 2006. EPA believed that this date was reasonable
given that CAFOs would have had a little over three and a half years
from the issuance of the 2003 rule to develop and implement an NMP.
This time frame allowed States to update their NPDES programs and issue
permits to reflect the NMP requirements of the 2003 CAFO rule. It also
provided flexibility for permitting authorities to establish permit
schedules based on specific circumstances, such as prioritization of
nutrient management plan development and implementation based on site-
specific water quality risks and the available infrastructure for
development of NMPs.
The timing of these compliance deadlines was affected by EPA's need
to revise the CAFO rule as a result of the Second Circuit's decision in
the Waterkeeper case. On February 10, 2006, prior to the Agency's June
2006 proposed rule responding to the Waterkeeper decision, EPA
promulgated a rule to revise each of the compliance dates in the 2003
CAFO rule that were affected by the decision (hereinafter ``2006 date
rule''). 71 FR 6978. Specifically, EPA extended the dates for those
newly defined CAFOs described above to seek NPDES permit coverage and
the date by which all CAFOs must develop and implement NMPs. EPA
revised these dates in order to: (1) Provide the Agency sufficient time
to take final action on the regulatory revisions with respect to the
Waterkeeper decision; and (2) require NMPs to be submitted at the time
of the permit application, consistent with the court's decision. It was
necessary for EPA to revise the dates separately from addressing the
rest of the issues raised by the Waterkeeper decision because EPA had
not completed the final rule responding to the Waterkeeper decision
prior to the dates by which newly defined CAFOs were required to seek
permit coverage under the 2003 rule.

E. Proposed Rule

On May 10, 2007, EPA proposed to further extend only the date by
which certain operations must seek authorization to discharge under an
NPDES permit and the date by which all permitted CAFOs must develop and
implement their NMPs.\2\ EPA proposed to revise these compliance dates
because EPA would not complete a final rule revising the 2003 CAFO rule
before the July 31, 2007, deadlines. The public comment period closed
on June 11, 2007. EPA received a total of 17 comments on the May 10,
2007, proposed rule.
---------------------------------------------------------------------------

\2\ Note that in response to the Waterkeeper decision, EPA
proposed a variation to the ``develop and implement'' language of
the June 2006 proposal which stated that a CAFO operator must submit
an NMP with its permit application or NOI and that it must be
implemented upon permit coverage. 71 FR 37744.
---------------------------------------------------------------------------

III. This Final Rule

A. New Deadlines for Permit Applications and for Permitted CAFOs To
Develop and Implement Nutrient Management Plans

This final rule extends certain dates for compliance specified in
the 2003 CAFO rule and amended by the 2006 date rule. Because EPA will
not have completed the rulemaking responding to the Waterkeeper
decision prior to the dates by which newly defined CAFOs must seek
permit coverage, the Agency is revising these dates to a time that is
subsequent to the forthcoming CAFO rule revision.
This rule amends the section detailing when operations defined as
CAFOs as of April 14, 2003, that were not defined as CAFOs prior to
that date, and operations that become CAFOs after that date due to
operational changes that would not have made then a CAFO prior to April
14, 2003, and that are not new sources must seek NPDES permit coverage.
Second, EPA is amending the deadline by which permitted CAFOs are
required to develop and implement NMPs. This final rule does not modify
or otherwise affect any other existing regulatory provisions, nor does
it promulgate any regulatory provisions associated with the proposed
rule in response to the Waterkeeper decision, published on June 30,
2006. 71 FR 37744.
1. Application Deadline for Newly Defined CAFOs
EPA is extending 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 July 31, 2007, to February 27,
2009. This deadline, found at 40 CFR 122.23(g)(2), applies to ``dry''
chicken operations, stand-alone immature swine, heifer and calf
operations, and those animal feeding operations (AFOs) that were
entitled to the permitting exemption for discharging only in the event
of a 25-year, 24-hour storm. EPA is also amending the date by which
operations that became defined as CAFOs after April 14, 2003, or that
will become CAFOs 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 July 31, 2007, to February 27, 2009.
An example of an operation affected by this deadline, which is found at
40 CFR 122.23(g)(3)(iii), is an AFO that increases the number of
animals in confinement to a level that would result in the operation
becoming defined as a CAFO.

[[Page 40248]]

This final rule does not affect the applicable time for seeking
permit coverage for newly constructed CAFOs not subject to new source
performance standards (NSPS) or for new source CAFOs subject to NSPS
that discharge or propose to discharge, even those in categories that
were added to the definition of a CAFO in the 2003 CAFO rule. Those
CAFOs are required by 40 CFR 122.21(a) and 123.23(g)(3)(i) and (g)(4)
to seek NPDES permit coverage at least 180 days prior to the time that
they commence operating.
This final rule does not supersede State requirements. States may
choose to require CAFOs to obtain NPDES permits in advance of the dates
set in the federal NPDES regulations. Further, CAFOs that are already
permitted, e.g., CAFOs that existed prior to the effective date of the
2003 CAFO rule and have been required to seek NPDES permit coverage
even before EPA issued the 2003 CAFO rule, continue to be required to
maintain permit coverage pursuant to Sec. 122.23(h).
EPA is also correcting a typographical error that was created in
the 2006 date rule. In that rule, 40 CFR 122.23(g)(1) as promulgated in
the 2003 CAFO rule (which provides that existing operations defined as
CAFOs prior to April 14, 2003, must seek permit coverage by the
effective date of the 2003 rule) was inadvertently replaced with 40 CFR
122.23(g)(2) (which provides extended compliance dates for operations
defined as CAFOs as of April 14, 2003, which were not defined as CAFOs
prior to that date). Because the ``(2)'' was erroneously printed as
``(1)'', Sec. 122.23(g)(1) was overwritten and Sec. 122.23(g)(2) was
incorrectly left unchanged. As a result, the rule following the
February 2006 date extension contained two provisions applicable to
``Operations defined as CAFOs as of April 14, 2003, who were not
defined as CAFOs prior to that date'' with conflicting dates. EPA is
restoring the original Sec. 122.23(g)(1), as promulgated in 2003, and
revising the date in Sec. 122.23(g)(2) to reflect the date extension
finalized by this rule.
2. Deadline for Nutrient Management Plans
EPA is extending the deadline by which permitted CAFOs are required
to develop and implement NMPs, from July 31, 2007, to February 27,
2009. This action revises all references to the date by which CAFOs
must develop and implement NMPs currently in 40 CFR parts 122 and 412.
Thus, this rule revises the deadlines found in 40 CFR 122.21(i)(1)(x),
122.42(e)(1), 412.31(b)(3), and 412.43(b)(2).
This final rule does not supersede State requirements, nor does it
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, or their applicable State requirements. This rule also does not
affect the existing applicable land application limitations and
requirements for all CAFOs subject to the new source performance
standards under 40 CFR 412.35 and 40 CFR 412.46. Upon permit coverage,
new sources must meet all relevant land application requirements.

B. Rationale for This Action

The amount of time needed to revise the rule in response to the
Waterkeeper decision has been greater than EPA anticipated at the time
it promulgated the 2006 date rule. At the time of the 2006 date rule,
EPA believed that July 31, 2007, would allow sufficient time for the
Agency to complete the rulemaking to address the Waterkeeper decision.
EPA also anticipated that the dates established in the 2006 date rule
provided sufficient time to ensure compliance with the NPDES
regulations within a reasonable timeframe consistent with the dates
established in the 2003 CAFO rule. 71 FR 6980-81. However, at that time
EPA had not yet proposed revisions to the CAFO rule and could only
surmise what the public response to the proposal would be. In light of
comments received and after further consideration of the proposed rule,
EPA is continuing to explore the best method of implementing the
Waterkeeper decision. To avoid any potential conflict with existing
deadlines that precede the publication of the final rule, it is
appropriate to revise the CAFO compliance dates effected by this final
rule.
Some commenters on the proposed rule raised concerns about the
proposed further delay and expressed interest in having the regulatory
requirements implemented in a timely fashion. In EPA's view, the
deadlines established by this rule are appropriate. Newly defined
facilities that are required to apply for an NPDES permit will need
sufficient time to develop their permit applications or notices of
intent for general permit authorization once EPA has finalized the
revised rules in response to the Waterkeeper decision. The revised
deadlines are also appropriate because permitting authorities will need
time following promulgation of the CAFO regulatory revisions to
identify the necessary procedures for reviewing NMPs and incorporating
them into general permits. Taking into account the time EPA needs to
complete the rule in response to Waterkeeper and the comments submitted
on that proposed rule, as well as the period of time after the final
rule is promulgated to allow States, the regulated community, and other
stakeholders the opportunity to adjust to the new regulatory
requirements, EPA believes that extending the dates to February 27,
2009, is reasonable.
Several commenters indicated that as a result of the Second
Circuit's decision vacating the duty to apply provision for CAFOs
established in the 2003 rule, the deadlines for CAFOs to seek coverage,
also initially established in that rule, are now unnecessary. These
commenters suggested that EPA should eliminate the deadlines for CAFOs
to seek coverage in 40 CFR 122.23(g)(2)-(3), such that only CAFOs that
discharge or propose to discharge would be required to seek coverage in
accordance with the timing requirements for all NPDES sources in 40 CFR
122.21(c). Several other commenters sought clarity of the duty to apply
provision following the Waterkeeper decision. These comments are beyond
the scope of this rulemaking. EPA reiterates that it will address the
various aspects of the court's Waterkeeper decision, including the
ruling on the ``duty to apply'' issue, in the final rule in response to
Waterkeeper.
There were a few commenters who requested that EPA provide greater
clarity regarding the applicability of the deadline extensions to
various classifications of CAFOs. As described above, the February 27,
2009, permit application deadlines revised in this rule do not apply to
CAFOs that were defined as CAFOs prior to the 2003 rule, nor do the
deadlines affect new sources subject to new source performance
standards. The deadlines revised by this rule for developing and
implementing NMPs apply to all permitted CAFOs, except that new sources
subject to new source performance standards must develop and implement
an NMP upon permit coverage.
Several commenters expressed the view that EPA needed to take into
consideration the time necessary for States to make conforming
revisions to State programs following EPA's regulatory revisions and,
accordingly, extend the deadlines to a date two to three years after
EPA intends to publish the final rule in response to Waterkeeper. While
EPA agrees that some States may need additional time to modify their
programs once EPA has

[[Page 40249]]

finalized its regulatory revisions in response to the Waterkeeper
decision, the Agency does not agree that these concerns justify further
extension of the compliance dates in this rule. EPA is committed to
collaborating with States and other interested parties to work through
the procedural challenges and resolve any difficulties that may arise
in the implementation of the regulatory revisions. In addition, EPA
notes that most of the technical provisions of the 2003 CAFO rule
(e.g., the substantive NMP requirements) were unaffected by the
Waterkeeper decision, and therefore CAFOs already have the information
they need to develop NMPs, and do not need to wait for further EPA
action before doing so.
Several commenters were opposed to the proposed extension of the
compliance dates and expressed concern that such an extension would
reward discharging CAFOs that have not yet complied with permitting
requirements and that by proposing the extension, EPA is exhibiting a
lack of urgency to ensure that discharging CAFOs obtain NPDES permit
coverage. In response, EPA notes that the deadline extension applies
only to a specific subset of CAFOs, and moreover, nothing in today's
rule precludes a CAFO from applying for a permit or seeking
authorization to discharge under a general permit (if available) before
the February 27, 2009 date. As stated above, this final rule affects
only certain compliance dates associated with the timing of EPA's final
rule revisions in response to the Waterkeeper decision. EPA is working
to promulgate those revisions as expeditiously as possible, while
giving due attention to the comments received on the June 2006
proposal. EPA is committed to finalizing the rulemaking process and to
working with States and agricultural partners to ensure timely
development of permit applications and NMPs where necessary. Moreover,
many States are actively implementing the CAFO program and issuing
permits, and the provisions of this final rule do not supersede
existing State requirements.
One comment expressed the view that EPA had made an incorrect
statement in the preamble to the May 10, 2007, proposed rule regarding
the ability of authorized States to require CAFOs to seek NPDES permit
coverage in advance of the dates set in the federal regulations. EPA
disagrees. The federal regulations establish the outermost limit by
which certain CAFOs subject to permitting requirements must seek permit
coverage, leaving open all dates preceding the deadline of February 27,
2009. If, for example, a State with an approved program were to
continue to require newly defined CAFOs to seek permit coverage by July
31, 2007, such a requirement would be consistent with the federal
requirement for newly defined CAFOs to seek permit coverage no later
than February 27, 2009.

IV. Effective Date of These Actions

EPA is making this rule immediately effective upon the date of
publication. The immediate effective date for this action is authorized
under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions
may become effective less than 30 days after publication if the rule
``grants or recognizes an exemption or relieves a restriction'' and
section 553(d)(3) which allows an effective date less than 30 days
after publication ``as otherwise provided by the agency for good cause
found and published with the rule.''
EPA finds that there is good cause to make the rule effective
immediately. The compliance deadlines being revised by this final rule
require some CAFOs to seek NPDES permit coverage and prepare and
implement nutrient management plans by July 31, 2007, before EPA
regulations will be in place to respond to the Waterkeeper decision.
Making this rule immediately effective is consistent with the purpose
of the good cause exemption which is to provide reasonable time for
affected parties to comply. A delayed effective date is not necessary
because affected parties do not have to take any action to comply with
this rule which simply extends deadlines for seeking NPDES permit
coverage and developing and implementing nutrient management plans. In
addition, consistent with section 553(d)(3), an immediate effective
date is justified because this rule relieves certain CAFOs of
obligations which would otherwise apply to them, to seek NPDES permit
coverage and develop and implement nutrient management plans by July
31, 2007.

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
rule is not a ``significant regulatory action'' and is therefore not
subject to review under the Executive Order. As discussed above, the
purpose of this rule is solely to address timing issues associated with
the Agency's response to the Waterkeeper court ruling on petitions for
review challenging portions of the 2003 CAFO rule. After considering
the economic impacts of this rule on small entities in accordance with
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), I certify that
this action will not have a significant adverse impact on a substantial
number of small entities since the effect of the final rule is solely
to extend certain deadlines related to NPDES CAFO permitting.
Additionally, this rule does not affect small governments, as the
permitting authorities are State or Federal agencies.
EPA has determined that this rule does 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. In addition, this action does not significantly
or uniquely affect small governments. Thus, this final rule is not
subject to sections 202, 203, or 205 of the Unfunded Mandates Reform
Act of 1999 (Pub. L. 104-4). In addition, this rule does not have
Tribal implications as specified in Executive Order 13175 (63 FR 67249,
November 9, 2000) because it will neither impose substantial direct
compliance costs on tribal governments, nor preempt Tribal law. This
final rule does not have federalism implications, as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999) because it does
not impose substantial direct compliance costs on State or local
governments, nor will it preempt State law. Thus, the requirements of
sections 6(b) and 6(c) of the Executive Order do not apply to this
rule.
This final rule is not subject to Executive Order 13045 because it
is not economically significant as defined under Executive Order 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. This final rule is not subject to
Executive Order 12898 (59 FR 7629 (February 16, 1994)), which
establishes federal executive policy on environmental justice. EPA has
determined that this rule will not have disproportionately high and
adverse human health or environmental effects on minority or low-income
populations because it does not affect the level of protection provided
to human health or the environment. This final rule is not 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.
This final rule does not involve technical standards; thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.

[[Page 40250]]

272 note) do not apply. This final rule does not impose any new
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. section 3501 et seq.). 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.
The Congressional Review Act, 5 U.S.C 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2) and will be effective on July 24, 2007.

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: July 18, 2007.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, the Environmental Protection
Agency amends 40 CFR parts 122 and 412 as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM

0
1. The authority citation for part 122 continues to read as follows:

Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

Sec. 122.21 [Amended]

0
2. In Sec. 122.21 paragraph (i)(1)(x), the date ``July 31, 2007'' is
revised to read ``February 27, 2009.''

0
3. Section 122.23 is amended by revising paragraphs (g)(1), (g)(2), and
(g)(3)(iii) to read as follows:

Sec. 122.23 Concentrated animal feeding operations (applicable to
State NPDES programs, see Sec. 123.25).

* * * * *
(g) * * *
(1) Operations defined as CAFOs prior to April 14, 2003. For
operations that are defined as CAFOs under regulations that are in
effect prior to April 14, 2003, the owner or operator must have or seek
to obtain coverage under an NPDES permit as of April 14, 2003, and
comply with all applicable NPDES requirements, including the duty to
maintain permit coverage in accordance with paragraph (h) of this
section.
(2) Operations defined as CAFOs as of April 14, 2003, that were not
defined as CAFOs prior to that date. For all operations defined as
CAFOs as of April 14, 2003, that were not defined as CAFOs prior to
that date, 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 February 27, 2009.
(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 February 27, 2009, or 90 days after becoming defined as a
CAFO, whichever is later.
* * * * *

Sec. 122.42 [Amended]

0
4. In Sec. 122.42 paragraph (e)(1), the two dates ``July 31, 2007''
are revised to read ``February 27, 2009.''

PART 412--CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFO) POINT
SOURCE CATEGORY

0
1. The authority citation for part 412 continues to read as follows:

Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, 1361.

Sec. 412.31 [Amended]

0
2. In Sec. 412.31 paragraph (b)(3), the date ``July 31, 2007'' is
revised to read ``February 27, 2009.''

Sec. 412.43 [Amended]

0
3. In Sec. 412.43 paragraph (b)(2), the date ``July 31, 2007'' is
revised to read ``February 27, 2009.''

[FR Doc. E7-14258 Filed 7-23-07; 8:45 am]
BILLING CODE 6560-50-P

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