National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule, 42679-42682 [2012-17772]
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Federal Register / Vol. 77, No. 140 / Friday, July 20, 2012 / Proposed Rules
and control of the engine power, from
30 seconds to 2.5 minutes. FAA
proposes special conditions based on
§ 33.28(k) requirements of amendment
33–26, which are the same as those of
§ 33.67(d) amendment 33–18.
• Special conditions are required to
account for the proposed rating of 2.5
minutes time duration during the
endurance test conduct. For the 30second and 2-minute OEI the test
schedule of § 33.87(f) is divided among
the two ratings.
We propose special conditions by
revising the requirements of § 33.87(f) to
ensure the test will be run for 2.5
minutes duration with no interruption.
Applicability
As discussed above, these special
conditions are applicable to GE’s CT7–
2E1 turboshaft engines. If GE applies
later for a change to the type certificate
to include another closely related model
incorporating the same novel or unusual
design feature, these special conditions
would apply to that model as well,
providing the certification basis is the
same or contains later amendments that
satisfy the certification basis discussed
in the section titled ‘‘Type Certification
Basis’’.
Conclusion
This action affects only certain novel
or unusual design features on the CT7–
2E1 turboshaft engine. It is not a rule of
general applicability, and it applies only
to GE, who requested FAA approval of
this engine feature.
List of Subjects in 14 CFR part 33
Air transportation, Aircraft, Aviation
safety, Safety.
The authority citation for these
special conditions is as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701,
44702, 44704.
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The Proposed Special Conditions
Accordingly, the FAA proposes the
following special conditions as part of
the type certification basis for GE CT7–
2E1 turboshaft engine.
1. Part 1 Definitions
Unless otherwise approved by the
Administrator and documented in the
appropriate manuals and certification
documents, the following definition
applies to this special condition: ‘‘Rated
flat 30-second and 2-minute One Engine
Inoperative (OEI) Power,’’ with respect
to rotorcraft turbine engines, means (1)
a rating for which the shaft horsepower
and associated operating limitations of
the 30-second OEI and 2-minute OEI
ratings are equal, and (2) the shaft
horsepower is that developed under
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static conditions at the altitude and
temperature for the hot day, and within
the operating limitations established
under part 33. The rating is for
continuation of flight operation after the
failure or shutdown of one engine in
multiengine rotorcraft, for up to three
periods of use no longer than 2.5
minutes each in any one flight, and
followed by mandatory inspection and
prescribed maintenance action.
2. Part 33 Requirements
(a) In addition to the airworthiness
standards in the type certification basis
applicable to the engine and the 30second and 2-minute OEI ratings, the
special conditions in this section apply.
(b) Section 33.7 Engine ratings and
operating limitations. Flat 30-second
and 2-minute OEI rating and operating
limitations are established by power,
torque, rotational speed, gas
temperature, and time duration.
(c) Section 33.27. Turbine,
compressor, fan, and turbosupercharger
rotor overspeed. The requirements
applicable to 21⁄2 minute OEI rating,
except that following the test, the rotor
may not exhibit conditions such as
cracking or distortion which preclude
continued safe operation.
(d) Section 33.28 Engine controls
systems. Must incorporate a means, or a
provision for a means, for automatic
availability and automatic control of the
flat 30-second and 2-minute OEI power
for the duration of 2.5 minutes and
within the declared operating
limitations.
(e) Section 33.87 Endurance test. The
requirements applicable to 30-second
and 2-minute OEI rating, except for:
(1) The test of § 33.87(a)(7) as
applicable to the 21⁄2 minute OEI rating.
Note to paragraph (e)(1): For the
purpose of temperature stabilization, the
test period time is 2.5 minutes.
(2) The tests in § 33.87(f)(2) and (3)
must be run continuously for the
duration of 2.5 minutes, and
(3) The tests in § 33.87(f)(6) and (7)
must be run continuously for the
duration of 2.5 minutes.
(f) Section 33.88 Engine
overtemperature test. The requirements
of § 33.88(c) except that the test time is
5 minutes instead of 4 minutes.
Issued in Burlington, Massachusetts, on
June 28, 2012.
Robert J. Ganley,
Acting Manager, Engine and Propeller
Directorate, Aircraft Certification Service.
[FR Doc. 2012–17560 Filed 7–19–12; 8:45 am]
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42679
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 9 and 122
[EPA–HQ–OW–2011–0188; FRL–9693–5]
RIN 2040–AF22
National Pollutant Discharge
Elimination System (NPDES)
Concentrated Animal Feeding
Operation (CAFO) Reporting Rule
Environmental Protection
Agency (EPA).
ACTION: Proposed rule; Withdrawal.
AGENCY:
On October 21, 2011, the EPA
proposed a rulemaking to improve and
restore water quality by collecting
certain information about concentrated
animal feeding operations (CAFOs). The
EPA also solicited comments on
improving water quality by promoting
environmental stewardship and
compliance rather than collecting
facility-specific information. The EPA is
withdrawing the proposal to collect
CAFO information by rule. Instead, the
EPA, where appropriate, will collect
CAFO information using existing
sources of information, including state
NPDES programs, other regulations, and
other programs at the federal, state, and
local level. The EPA believes, at this
time, it is more appropriate to obtain
CAFO information by working with
federal, state, and local partners instead
of requiring CAFO information to be
submitted pursuant to a rule. Today’s
withdrawal does not preclude the
Agency from initiating the same or
similar rulemaking at a future date.
ADDRESSES: Docket: All documents in
the docket are listed in the
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., confidential
business information (CBI) or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in www.regulations.gov or
in hard copy at the Water Docket, EPA/
DC, EPA West, Room 3334, 1301
Constitution Ave. NW., Washington, DC
20004. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding
federal 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: For
additional information, contact Becky
SUMMARY:
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Mitschele, Water Permits Division,
Office of Wastewater Management
(4203M), U.S. Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone
number: (202) 564–6418; fax number:
(202) 564–6384; email address:
mitschele.becky@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. What entities are potentially interested
in this action?
B. Legal Authority
II. Background
III. Summary of Comments Received
IV. The EPA’s Considerations Since Proposal
V. The EPA’s Rationale for Withdrawal of the
Proposed Rule
VI. Impact Analysis
VII. Statutory and Executive Order Reviews
I. General Information
A. What entities are potentially
interested in this final action?
Entities potentially interested in this
final action include animal feeding
operations (AFOs), including AFOs that
are CAFOs as defined in the National
Pollutant Discharge Elimination System
(NPDES) regulations at 40 CFR
122.23(b)(2), pursuant to section 502(14)
of the Clean Water Act (CWA). An AFO
is a CAFO if it meets the regulatory
definition of a Large or Medium CAFO
(40 CFR 122.23(b)(4) or (6)) or has been
designated as a CAFO (40 CFR
122.23(c)) by an authorized state or by
the EPA. The following table provides
the size thresholds for Large, Medium,
and Small CAFOs in each animal sector.
TABLE 1—SUMMARY OF CAFO SIZE THRESHOLDS FOR ALL SECTORS
Sector
Large
Medium 1
Cattle or cow/calf pairs ............................................................................................
Mature dairy cattle ...................................................................................................
Veal calves ...............................................................................................................
Swine (weighing over 55 pounds) ...........................................................................
Swine (weighing less than 55 pounds) ....................................................................
Horses ......................................................................................................................
Sheep or lambs ........................................................................................................
Turkeys ....................................................................................................................
Laying hens or broilers (liquid manure handling system) ........................................
Chickens other than laying hens (other than a liquid manure handling system) ....
Laying hens (other than a liquid manure handling system) ....................................
Ducks (other than a liquid manure handling system) ..............................................
Ducks (liquid manure handling system) ...................................................................
1,000 or more ......
700 or more .........
1,000 or more ......
2,500 or more ......
10,000 or more ....
500 or more .........
10,000 or more ....
55,000 or more ....
30,000 or more ....
125,000 or more ..
82,000 or more ....
30,000 or more ....
5,000 or more ......
300–999 ...............
200–699 ...............
300–999 ...............
750–2,499 ............
3,000–9,999 .........
150–499 ...............
3,000–9,999 .........
16,500–54,999 .....
9,000–29,999 .......
37,500–124,999 ...
25,000–81,999 .....
10,000–29,999 .....
1,500–4,999 .........
Small 2
Less
Less
Less
Less
Less
Less
Less
Less
Less
Less
Less
Less
Less
than
than
than
than
than
than
than
than
than
than
than
than
than
300.
200.
300.
750.
3,000.
150.
3,000.
16,500.
9,000.
37,500.
25,000.
10,000.
1,500.
Notes:
1 May be designated or must meet one of the following two criteria to be defined as a Medium CAFO: (1) Discharges pollutants through a manmade device; or (2) directly discharges pollutants into waters of the United States which pass over, across, or through the facility or otherwise
come into direct contact with the confined animals. 40 CFR 122.23(b)(6).
2 Not a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case basis. 40 CFR 122.23(b)(9).
This table is not intended to be
exhaustive. It provides a guide for
entities likely to be interested in today’s
action. If you have questions regarding
this action, consult the person listed in
the preceding FOR FURTHER INFORMATION
CONTACT section.
B. Legal Authority
This action withdraws the proposed
NPDES CAFO Reporting Rule. 76 FR
65431, October 21, 2011. Today’s final
action is issued pursuant to sections
301, 304, 305, 308, 309, 402, 501, and
504 of the CWA (33 U.S.C. 1311, 1314,
1315, 1318, 1319, 1342, 1361, and
1364).
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II. Background
A core provision of the CWA is the
NPDES permit program which
authorizes and regulates the discharge
of pollutants from point sources to
waters of the United States. 33 U.S.C.
1342. Section 502(14) of the CWA
includes ‘‘concentrated animal feeding
operation’’ (CAFO) in the definition of
‘‘point source.’’ The EPA initially issued
national effluent guidelines and
standards (ELGs) for feedlots on
February 14, 1974, and NPDES CAFO
regulations on March 18, 1976. 39 FR
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5704, February 14, 1974; 41 FR 11458,
March 18, 1976.
In 2008, the EPA issued revised
NPDES permitting regulations for
CAFOs. 73 FR 70418, November 20,
2008. Subsequently, environmental
groups and industry filed petitions for
review of the 2008 rule, which were
consolidated in the U.S. Court of
Appeals for the Fifth Circuit. On May
25, 2010, the EPA signed a settlement
agreement with the environmental
petitioners in which the EPA committed
to propose a rule, pursuant to CWA
section 308, 33 U.S.C. 1318, to require
all owners or operators of CAFOs to
submit certain information to the EPA.
On October 21, 2011, the EPA
proposed a rulemaking that contained
regulatory options for obtaining
specified information from CAFOs to
support the EPA in meeting its water
quality protection responsibilities under
the CWA. The EPA solicited comment
on the additional items listed in the
settlement agreement that the Agency
did not propose to collect. The EPA also
requested comment on three alternative
approaches to improve water quality
including: Collecting data from existing
sources, requiring states to submit the
information to the EPA, and expanding
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the EPA’s network of compliance
assistance and outreach tools. The
Federal Register notice contains
detailed descriptions and a discussion
of each option proposed. 76 FR 65431,
October 21, 2011.
In the settlement agreement, the EPA
committed to take final action on the
proposal by July 13, 2012. The
settlement agreement does not commit
the EPA to any particular final action.
The settlement agreement expressly
states that nothing in the agreement
shall be construed to limit or modify the
discretion accorded the EPA by the
CWA or by general principles of
administrative law. Today’s final action
fulfills the Agency’s commitments per
the settlement agreement with the
petitioners.
III. Summary of Comments Received
The comment period for the proposed
rule ended on January 19, 2012, and the
EPA received 1,403 comment letters.
The commenters on the proposed rule
included, among others, states, state
associations, industry organizations,
environmental advocacy groups, and
individuals. The public comments and
the EPA’s supporting documents are
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available in Docket EPA–HQ–OW–
2011–0188.
Generally, state and state association
commenters questioned the need for
new regulations in light of states already
having the information the EPA was
seeking by virtue of existing CAFO
programs at the state and local level.
Industry commenters opposed the
proposed rule arguing, among other
things, that much of the data had
already been submitted to the states and
the EPA and that the information could
be collected through means other than
a rule. Environmental advocacy groups
commented in support of the proposed
rule and argued that the EPA should
collect more than the five items of
information proposed. Individual
comments ranged from opposition of the
proposed rule to support of the
proposed rule. Individuals who opposed
the proposal commented that it would
be too burdensome for CAFOs to
comply with the proposed rule.
Individuals who supported the proposal
commented that the proposed rule is
necessary to implement the CAFO
program and that more information than
proposed should be collected from
CAFOs.
IV. The EPA’s Considerations Since
Proposal
Since the EPA proposed the
rulemaking on October 21, 2011, the
EPA conducted a preliminary
evaluation of information publicly
available on the Internet from all state
permitting authorities, expanding on the
effort the Agency conducted prior to
proposal. Prior to proposal, the EPA
evaluated a subset of existing state
programs and identified publicly
accessible site-specific information for
CAFOs. That information informed the
EPA’s decision to develop the voluntary
state submission process and the
alternative approach that relies on
existing data sources in the proposed
NPDES CAFO Reporting Rule. 76 FR
65437, October 21, 2011. The docket
contains examples of CAFO site-specific
information that is publicly available on
the Internet.
The EPA’s post-proposal evaluation of
available information included a review
of 37 state permitting authority Web
sites to determine if information about
CAFOs is accessible online. The EPA
notes that although, at present, there are
47 states authorized to implement the
NPDES program, a number of those
states either have no CAFOs or are not
authorized to implement the CAFO
portion of the NPDES program. In states
where the EPA administers the NPDES
program for CAFOs, the EPA has
information for CAFOs with NPDES
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permit coverage from permit
applications or notices of intent. The
review of the 37 state permitting Web
sites yielded information on 7,473
operations that confine animals. Some
of the information includes operations
that are not federally defined as CAFOs
or operations that are required under
state law to have state non-NPDES
permits. The EPA compiled these
results into a summary report, which
can be found in the docket.
In July 2012, the EPA also established
a Memorandum of Understanding
(MOU) with the Association of the
Clean Water Administrators (ACWA)
that specifically will assist the Agency
in collecting information about CAFOs.
ACWA is an independent, nonpartisan,
non-profit corporation of state and
interstate water program managers. The
EPA believes cooperation with the states
will assist the EPA in obtaining needed
CAFO information. This collaborative
effort between the EPA and ACWA will
focus on identifying CAFOs and assist
the EPA in obtaining pertinent
information about CAFOs on a state-bystate basis.
V. The EPA’s Rationale for Withdrawal
of the Proposed Rule
In today’s final action, the EPA has
chosen not to promulgate a regulation.
Instead, the EPA is pursuing an
approach that relies on a range of
existing sources of information, other
regulations, and other programs at the
federal, state, and local level to gather
basic information about CAFOs. The
EPA believes at this time it is more
appropriate to obtain CAFO information
from existing sources. Some states
commented that they have the
information proposed to be collected by
the rule and expressed interest in
working with the EPA to exchange that
information. Since the EPA has
established relationships with states, as
well as the U.S. Department of
Agriculture (USDA), U.S. Geological
Survey (USGS), and other federal
partners, the EPA believes that working
through existing partnerships will yield
timely and useful results in obtaining
much of the needed CAFO information.
In developing animal agricultural
programs since the 2003 CAFO rule,
states have longstanding relationships
with owners and operators of operations
that confine animals. These
relationships will facilitate information
sharing between relevant stakeholders.
CAFOs play an important role in
water quality planning, due to the fact
that they are potential sources of
nitrogen, phosphorus, pathogens, and
other pollutants. The EPA continues to
believe that the gathering and evaluating
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42681
of information about CAFOs can assist
local, state, and federal governments,
regulated entities, interest groups, and
the public in making more informed
decisions toward meeting the objective
of the CWA to ‘‘restore and maintain the
chemical, physical, and biological
integrity of the Nation’s waters.’’ 33
U.S.C. 1251(a). EPA explained how
information about CAFOs would assist
in implementation of CWA programs in
the proposed rule. 76 FR 65436, October
21, 2011. Through the approach
outlined in this notice, the EPA will
seek to collect CAFO information items
listed in the proposed rule, as well as
other information that is available from
existing resources, which includes
continuing to work with USDA, USGS,
and other agencies to address sources of
nutrient pollution.
Based on the comments received, the
EPA believes that it can obtain much of
the desired CAFO information from
federal agencies, states, and other
existing data sources. The EPA noted in
the proposal that the existing NPDES
permitting program requires CAFOs
with NPDES permit coverage to submit
information as part of the application
process as well as in annual reports. 76
FR 65439, October 21, 2011. Pursuant to
40 CFR 122.21(i), information on a
CAFO permit application must include
the following: (1) Name of the owner or
operator, (2) facility location and
mailing address, (3) latitude and
longitude of the production area
(entrance of the production area), (4) a
topographic map of the geographic area
in which the CAFO is located showing
the specific location of the production
area, (5) specific information about the
number and type of animals, whether in
open confinement or housed under roof,
(6) the type of containment and storage
and total capacity for manure, litter, or
process wastewater, (7) the total number
of acres under control of the applicant
available for land application of
manure, litter, or process wastewater,
(8) estimated amounts of manure, litter,
and process wastewater generated per
year, (9) estimated amounts of manure,
litter, and process wastewater
transferred to other persons per year,
and (10) a nutrient management plan
that at a minimum satisfies the
requirements specified in 40 CFR
122.42(e), including, for all CAFOs
subject to the effluent limitations and
standards, the requirements of 40 CFR
412.4(c), as applicable. Also, pursuant
to 40 CFR 123.24(b)(3), a memorandum
of agreement between State Directors
and the Regional Administrators
specifies the frequency and content of
reports, documents, and other
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information which the state is required
to submit to the EPA. States are required
to allow the EPA to routinely review
state records, reports, and files relevant
to the administration and enforcement
of the approved program. See also 40
CFR 123.41, 40 CFR 123.43. Because
these two provisions are part of the
NPDES program, the EPA believes, at
this time, NPDES authorized states have
basic information from the permit
application for at least those CAFOs
with NPDES permit coverage, and that
states will share that information with
the EPA. In states where the EPA
administers the NPDES program for
CAFOs, the EPA has information for
CAFOs with NPDES permit coverage
from permit applications or notices of
intent.
The EPA believes an efficient
approach that does not duplicate efforts
is the appropriate next step to collecting
CAFO information. Thus, the EPA
believes that before determining
whether to issue a rule requiring CAFOs
to submit information, the Agency
should obtain existing information from
federal agencies, states, local partners,
and other resources that already collect
data. This decision also recognizes that
many CAFOs have provided their
information to some governmental
entity, although perhaps not to the EPA.
While the EPA may not be the entity
that received the information initially, it
is reasonable at this time for the EPA to
work with its federal, state, and local
partners to obtain existing information
rather than asking CAFOs to re-submit
information that they have already
submitted to another governmental
entity. Collecting existing information,
evaluating it, and compiling it in one
format will better inform the Agency of
what additional information may be
needed and the best way to collect that
information, if necessary.
Continued implementation of the
permitting program for CAFOs likely
will result in improvements in data
tracking and availability and analysis of
CAFO information. For example, some
states with established programs have
comprehensive data on CAFOs. The
EPA described existing data sources in
the proposed CAFO Reporting Rule, of
which state permitting authorities are
just one source. In addition to working
with the state permitting authorities to
exchange information mainly on CAFOs
with NPDES permit coverage, the EPA
may need to use other existing sources
of data to obtain information about
CAFOs without NPDES permit coverage.
The EPA acknowledges some states will
have information about CAFOs without
NPDES permit coverage through other
state programs, such as state operating
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permits. To fill in information gaps, the
Agency may use existing tools, such as
site visits and individual information
collection requests.
At this time, the EPA has concluded
that working with USDA and states,
who maintain direct relationships with
CAFO owners or operators is an
effective approach to obtaining CAFO
information that will minimize the
burden on states and CAFOs.
VI. Impact Analysis
Because the EPA is not promulgating
a regulatory reporting requirement,
there are no compliance costs or
impacts associated with today’s final
action.
VII. Statutory and Executive Order
Reviews
Today’s action does not establish new
regulatory requirements. Hence, the
requirements of other regulatory statutes
and Executive Orders that generally
apply to rulemakings (e.g., the
Unfunded Mandate Reform Act) do not
apply to this action.
List of Subjects
40 CFR Part 9
Environmental protection, Reporting
and recordkeeping requirements.
40 CFR Part 122
Administrative practice and
procedure, Confidential business
information, Hazardous substances,
Reporting and recordkeeping
requirements, Water pollution control.
Dated: July 13, 2012.
Lisa P. Jackson,
Administrator.
[FR Doc. 2012–17772 Filed 7–19–12; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2012–0343; FRL–9701–8]
Approval and Promulgation of Air
Quality Implementation Plan; Alabama;
Disapproval of 110(a)(2)(E)(ii)
Infrastructure Requirement for the
1997 Annual and 2006 24-Hour PM2.5
Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to
disapprove a portion of the State
Implementation Plan (SIP) submissions,
submitted by the State of Alabama,
SUMMARY:
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through the Alabama Department of
Environmental Management (ADEM),
on July 25, 2008, and on September 23,
2009, to demonstrate that the State
meets requirements of sections 110(a)(1)
and (2) of the Clean Air Act (CAA or
Act) for the 1997 annual and 2006 24hour fine particulate matter (PM2.5)
national ambient air quality standards
(NAAQS). Section 110(a) of the CAA
requires that each state adopt and
submit a SIP for the implementation,
maintenance and enforcement of each
NAAQS promulgated by EPA, which is
commonly referred to as an
‘‘infrastructure’’ SIP. Specifically, EPA
is proposing to disapprove sub-element
110(a)(2)(E)(ii) that requires the State to
comply with section 128 of the CAA.
EPA is taking a separate action to
address all the other infrastructure
elements for the 1997 annual and 2006
24-hour PM2.5 NAAQS.
DATES: Comments must be received on
or before August 20, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2012–0343 by one of the following
methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: EPA–R04–OAR–2012–0343,
Regulatory Development Section, Air
Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960.
5. Hand Delivery or Courier: Ms.
Lynorae Benjamin, Chief, Regulatory
Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Such
deliveries are only accepted during the
Regional Office’s normal hours of
operation. The Regional Office’s official
hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal
holidays.
Instructions: Direct your comments to
Docket ID No. ‘‘EPA–R04–OAR–2012–
0343.’’ EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit through
E:\FR\FM\20JYP1.SGM
20JYP1
]]>Agencies
[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Proposed Rules]
[Pages 42679-42682]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17772]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 122
[EPA-HQ-OW-2011-0188; FRL-9693-5]
RIN 2040-AF22
National Pollutant Discharge Elimination System (NPDES)
Concentrated Animal Feeding Operation (CAFO) Reporting Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; Withdrawal.
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SUMMARY: On October 21, 2011, the EPA proposed a rulemaking to improve
and restore water quality by collecting certain information about
concentrated animal feeding operations (CAFOs). The EPA also solicited
comments on improving water quality by promoting environmental
stewardship and compliance rather than collecting facility-specific
information. The EPA is withdrawing the proposal to collect CAFO
information by rule. Instead, the EPA, where appropriate, will collect
CAFO information using existing sources of information, including state
NPDES programs, other regulations, and other programs at the federal,
state, and local level. The EPA believes, at this time, it is more
appropriate to obtain CAFO information by working with federal, state,
and local partners instead of requiring CAFO information to be
submitted pursuant to a rule. Today's withdrawal does not preclude the
Agency from initiating the same or similar rulemaking at a future date.
ADDRESSES: Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, will
be publicly available only in hard copy. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the Water Docket, EPA/DC, EPA West, Room 3334, 1301
Constitution Ave. NW., Washington, DC 20004. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
federal 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: For additional information, contact
Becky
[[Page 42680]]
Mitschele, Water Permits Division, Office of Wastewater Management
(4203M), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave.
NW., Washington, DC 20460; telephone number: (202) 564-6418; fax
number: (202) 564-6384; email address: mitschele.becky@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. What entities are potentially interested in this action?
B. Legal Authority
II. Background
III. Summary of Comments Received
IV. The EPA's Considerations Since Proposal
V. The EPA's Rationale for Withdrawal of the Proposed Rule
VI. Impact Analysis
VII. Statutory and Executive Order Reviews
I. General Information
A. What entities are potentially interested in this final action?
Entities potentially interested in this final action include animal
feeding operations (AFOs), including AFOs that are CAFOs as defined in
the National Pollutant Discharge Elimination System (NPDES) regulations
at 40 CFR 122.23(b)(2), pursuant to section 502(14) of the Clean Water
Act (CWA). An AFO is a CAFO if it meets the regulatory definition of a
Large or Medium CAFO (40 CFR 122.23(b)(4) or (6)) or has been
designated as a CAFO (40 CFR 122.23(c)) by an authorized state or by
the EPA. The following table provides the size thresholds for Large,
Medium, and Small CAFOs in each animal sector.
Table 1--Summary of CAFO Size Thresholds for All Sectors
----------------------------------------------------------------------------------------------------------------
Sector Large Medium \1\ Small \2\
----------------------------------------------------------------------------------------------------------------
Cattle or cow/calf pairs....... 1,000 or more............ 300-999.................. Less than 300.
Mature dairy cattle............ 700 or more.............. 200-699.................. Less than 200.
Veal calves.................... 1,000 or more............ 300-999.................. Less than 300.
Swine (weighing over 55 pounds) 2,500 or more............ 750-2,499................ Less than 750.
Swine (weighing less than 55 10,000 or more........... 3,000-9,999.............. Less than 3,000.
pounds).
Horses......................... 500 or more.............. 150-499.................. Less than 150.
Sheep or lambs................. 10,000 or more........... 3,000-9,999.............. Less than 3,000.
Turkeys........................ 55,000 or more........... 16,500-54,999............ Less than 16,500.
Laying hens or broilers (liquid 30,000 or more........... 9,000-29,999............. Less than 9,000.
manure handling system).
Chickens other than laying hens 125,000 or more.......... 37,500-124,999........... Less than 37,500.
(other than a liquid manure
handling system).
Laying hens (other than a 82,000 or more........... 25,000-81,999............ Less than 25,000.
liquid manure handling system).
Ducks (other than a liquid 30,000 or more........... 10,000-29,999............ Less than 10,000.
manure handling system).
Ducks (liquid manure handling 5,000 or more............ 1,500-4,999.............. Less than 1,500.
system).
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ May be designated or must meet one of the following two criteria to be defined as a Medium CAFO: (1)
Discharges pollutants through a man-made device; or (2) directly discharges pollutants into waters of the
United States which pass over, across, or through the facility or otherwise come into direct contact with the
confined animals. 40 CFR 122.23(b)(6).
\2\ Not a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case basis. 40 CFR
122.23(b)(9).
This table is not intended to be exhaustive. It provides a guide
for entities likely to be interested in today's action. If you have
questions regarding this action, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. Legal Authority
This action withdraws the proposed NPDES CAFO Reporting Rule. 76 FR
65431, October 21, 2011. Today's final action is issued pursuant to
sections 301, 304, 305, 308, 309, 402, 501, and 504 of the CWA (33
U.S.C. 1311, 1314, 1315, 1318, 1319, 1342, 1361, and 1364).
II. Background
A core provision of the CWA is the NPDES permit program which
authorizes and regulates the discharge of pollutants from point sources
to waters of the United States. 33 U.S.C. 1342. Section 502(14) of the
CWA includes ``concentrated animal feeding operation'' (CAFO) in the
definition of ``point source.'' The EPA initially issued national
effluent guidelines and standards (ELGs) for feedlots on February 14,
1974, and NPDES CAFO regulations on March 18, 1976. 39 FR 5704,
February 14, 1974; 41 FR 11458, March 18, 1976.
In 2008, the EPA issued revised NPDES permitting regulations for
CAFOs. 73 FR 70418, November 20, 2008. Subsequently, environmental
groups and industry filed petitions for review of the 2008 rule, which
were consolidated in the U.S. Court of Appeals for the Fifth Circuit.
On May 25, 2010, the EPA signed a settlement agreement with the
environmental petitioners in which the EPA committed to propose a rule,
pursuant to CWA section 308, 33 U.S.C. 1318, to require all owners or
operators of CAFOs to submit certain information to the EPA.
On October 21, 2011, the EPA proposed a rulemaking that contained
regulatory options for obtaining specified information from CAFOs to
support the EPA in meeting its water quality protection
responsibilities under the CWA. The EPA solicited comment on the
additional items listed in the settlement agreement that the Agency did
not propose to collect. The EPA also requested comment on three
alternative approaches to improve water quality including: Collecting
data from existing sources, requiring states to submit the information
to the EPA, and expanding the EPA's network of compliance assistance
and outreach tools. The Federal Register notice contains detailed
descriptions and a discussion of each option proposed. 76 FR 65431,
October 21, 2011.
In the settlement agreement, the EPA committed to take final action
on the proposal by July 13, 2012. The settlement agreement does not
commit the EPA to any particular final action. The settlement agreement
expressly states that nothing in the agreement shall be construed to
limit or modify the discretion accorded the EPA by the CWA or by
general principles of administrative law. Today's final action fulfills
the Agency's commitments per the settlement agreement with the
petitioners.
III. Summary of Comments Received
The comment period for the proposed rule ended on January 19, 2012,
and the EPA received 1,403 comment letters. The commenters on the
proposed rule included, among others, states, state associations,
industry organizations, environmental advocacy groups, and individuals.
The public comments and the EPA's supporting documents are
[[Page 42681]]
available in Docket EPA-HQ-OW-2011-0188.
Generally, state and state association commenters questioned the
need for new regulations in light of states already having the
information the EPA was seeking by virtue of existing CAFO programs at
the state and local level. Industry commenters opposed the proposed
rule arguing, among other things, that much of the data had already
been submitted to the states and the EPA and that the information could
be collected through means other than a rule. Environmental advocacy
groups commented in support of the proposed rule and argued that the
EPA should collect more than the five items of information proposed.
Individual comments ranged from opposition of the proposed rule to
support of the proposed rule. Individuals who opposed the proposal
commented that it would be too burdensome for CAFOs to comply with the
proposed rule. Individuals who supported the proposal commented that
the proposed rule is necessary to implement the CAFO program and that
more information than proposed should be collected from CAFOs.
IV. The EPA's Considerations Since Proposal
Since the EPA proposed the rulemaking on October 21, 2011, the EPA
conducted a preliminary evaluation of information publicly available on
the Internet from all state permitting authorities, expanding on the
effort the Agency conducted prior to proposal. Prior to proposal, the
EPA evaluated a subset of existing state programs and identified
publicly accessible site-specific information for CAFOs. That
information informed the EPA's decision to develop the voluntary state
submission process and the alternative approach that relies on existing
data sources in the proposed NPDES CAFO Reporting Rule. 76 FR 65437,
October 21, 2011. The docket contains examples of CAFO site-specific
information that is publicly available on the Internet.
The EPA's post-proposal evaluation of available information
included a review of 37 state permitting authority Web sites to
determine if information about CAFOs is accessible online. The EPA
notes that although, at present, there are 47 states authorized to
implement the NPDES program, a number of those states either have no
CAFOs or are not authorized to implement the CAFO portion of the NPDES
program. In states where the EPA administers the NPDES program for
CAFOs, the EPA has information for CAFOs with NPDES permit coverage
from permit applications or notices of intent. The review of the 37
state permitting Web sites yielded information on 7,473 operations that
confine animals. Some of the information includes operations that are
not federally defined as CAFOs or operations that are required under
state law to have state non-NPDES permits. The EPA compiled these
results into a summary report, which can be found in the docket.
In July 2012, the EPA also established a Memorandum of
Understanding (MOU) with the Association of the Clean Water
Administrators (ACWA) that specifically will assist the Agency in
collecting information about CAFOs. ACWA is an independent,
nonpartisan, non-profit corporation of state and interstate water
program managers. The EPA believes cooperation with the states will
assist the EPA in obtaining needed CAFO information. This collaborative
effort between the EPA and ACWA will focus on identifying CAFOs and
assist the EPA in obtaining pertinent information about CAFOs on a
state-by-state basis.
V. The EPA's Rationale for Withdrawal of the Proposed Rule
In today's final action, the EPA has chosen not to promulgate a
regulation. Instead, the EPA is pursuing an approach that relies on a
range of existing sources of information, other regulations, and other
programs at the federal, state, and local level to gather basic
information about CAFOs. The EPA believes at this time it is more
appropriate to obtain CAFO information from existing sources. Some
states commented that they have the information proposed to be
collected by the rule and expressed interest in working with the EPA to
exchange that information. Since the EPA has established relationships
with states, as well as the U.S. Department of Agriculture (USDA), U.S.
Geological Survey (USGS), and other federal partners, the EPA believes
that working through existing partnerships will yield timely and useful
results in obtaining much of the needed CAFO information. In developing
animal agricultural programs since the 2003 CAFO rule, states have
longstanding relationships with owners and operators of operations that
confine animals. These relationships will facilitate information
sharing between relevant stakeholders.
CAFOs play an important role in water quality planning, due to the
fact that they are potential sources of nitrogen, phosphorus,
pathogens, and other pollutants. The EPA continues to believe that the
gathering and evaluating of information about CAFOs can assist local,
state, and federal governments, regulated entities, interest groups,
and the public in making more informed decisions toward meeting the
objective of the CWA to ``restore and maintain the chemical, physical,
and biological integrity of the Nation's waters.'' 33 U.S.C. 1251(a).
EPA explained how information about CAFOs would assist in
implementation of CWA programs in the proposed rule. 76 FR 65436,
October 21, 2011. Through the approach outlined in this notice, the EPA
will seek to collect CAFO information items listed in the proposed
rule, as well as other information that is available from existing
resources, which includes continuing to work with USDA, USGS, and other
agencies to address sources of nutrient pollution.
Based on the comments received, the EPA believes that it can obtain
much of the desired CAFO information from federal agencies, states, and
other existing data sources. The EPA noted in the proposal that the
existing NPDES permitting program requires CAFOs with NPDES permit
coverage to submit information as part of the application process as
well as in annual reports. 76 FR 65439, October 21, 2011. Pursuant to
40 CFR 122.21(i), information on a CAFO permit application must include
the following: (1) Name of the owner or operator, (2) facility location
and mailing address, (3) latitude and longitude of the production area
(entrance of the production area), (4) a topographic map of the
geographic area in which the CAFO is located showing the specific
location of the production area, (5) specific information about the
number and type of animals, whether in open confinement or housed under
roof, (6) the type of containment and storage and total capacity for
manure, litter, or process wastewater, (7) the total number of acres
under control of the applicant available for land application of
manure, litter, or process wastewater, (8) estimated amounts of manure,
litter, and process wastewater generated per year, (9) estimated
amounts of manure, litter, and process wastewater transferred to other
persons per year, and (10) a nutrient management plan that at a minimum
satisfies the requirements specified in 40 CFR 122.42(e), including,
for all CAFOs subject to the effluent limitations and standards, the
requirements of 40 CFR 412.4(c), as applicable. Also, pursuant to 40
CFR 123.24(b)(3), a memorandum of agreement between State Directors and
the Regional Administrators specifies the frequency and content of
reports, documents, and other
[[Page 42682]]
information which the state is required to submit to the EPA. States
are required to allow the EPA to routinely review state records,
reports, and files relevant to the administration and enforcement of
the approved program. See also 40 CFR 123.41, 40 CFR 123.43. Because
these two provisions are part of the NPDES program, the EPA believes,
at this time, NPDES authorized states have basic information from the
permit application for at least those CAFOs with NPDES permit coverage,
and that states will share that information with the EPA. In states
where the EPA administers the NPDES program for CAFOs, the EPA has
information for CAFOs with NPDES permit coverage from permit
applications or notices of intent.
The EPA believes an efficient approach that does not duplicate
efforts is the appropriate next step to collecting CAFO information.
Thus, the EPA believes that before determining whether to issue a rule
requiring CAFOs to submit information, the Agency should obtain
existing information from federal agencies, states, local partners, and
other resources that already collect data. This decision also
recognizes that many CAFOs have provided their information to some
governmental entity, although perhaps not to the EPA. While the EPA may
not be the entity that received the information initially, it is
reasonable at this time for the EPA to work with its federal, state,
and local partners to obtain existing information rather than asking
CAFOs to re-submit information that they have already submitted to
another governmental entity. Collecting existing information,
evaluating it, and compiling it in one format will better inform the
Agency of what additional information may be needed and the best way to
collect that information, if necessary.
Continued implementation of the permitting program for CAFOs likely
will result in improvements in data tracking and availability and
analysis of CAFO information. For example, some states with established
programs have comprehensive data on CAFOs. The EPA described existing
data sources in the proposed CAFO Reporting Rule, of which state
permitting authorities are just one source. In addition to working with
the state permitting authorities to exchange information mainly on
CAFOs with NPDES permit coverage, the EPA may need to use other
existing sources of data to obtain information about CAFOs without
NPDES permit coverage. The EPA acknowledges some states will have
information about CAFOs without NPDES permit coverage through other
state programs, such as state operating permits. To fill in information
gaps, the Agency may use existing tools, such as site visits and
individual information collection requests.
At this time, the EPA has concluded that working with USDA and
states, who maintain direct relationships with CAFO owners or operators
is an effective approach to obtaining CAFO information that will
minimize the burden on states and CAFOs.
VI. Impact Analysis
Because the EPA is not promulgating a regulatory reporting
requirement, there are no compliance costs or impacts associated with
today's final action.
VII. Statutory and Executive Order Reviews
Today's action does not establish new regulatory requirements.
Hence, the requirements of other regulatory statutes and Executive
Orders that generally apply to rulemakings (e.g., the Unfunded Mandate
Reform Act) do not apply to this action.
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 122
Administrative practice and procedure, Confidential business
information, Hazardous substances, Reporting and recordkeeping
requirements, Water pollution control.
Dated: July 13, 2012.
Lisa P. Jackson,
Administrator.
[FR Doc. 2012-17772 Filed 7-19-12; 8:45 am]
BILLING CODE 6560-50-P
