National Pollutant Discharge Elimination System Permit Regulation for Concentrated Animal Feeding Operations: Removal of Vacated Elements in Response to 2011 Court Decision, 44494-44497 [2012-18378]
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44494
Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Rules and Regulations
12.3 System Performance Check.
Use Equation 16C–2 to calculate the
system performance.
run or series of runs (not to exceed a 24hr period) from initial calibration.
Compare the single-level calibration gas
error (ACEn) to the original error
obtained for that gas in the initial
analyzer calibration error test (ACEi).
12.5 TRS Concentration as SO2. For
each sample or test run, calculate the
arithmetic average of SO2 concentration
values (e.g., 1-minute averages). Then
calculate the sample TRS concentration
by adjusting the average value of CSO2
for system performance using Equation
16C–4a if you use a non-zero gas as your
low-level calibration gas, or Equation
16C–4b if you use a zero gas as your
low-level calibration gas.
13.0
14.0
Pollution Prevention [Reserved]
15.0
Waste Management [Reserved]
ENVIRONMENTAL PROTECTION
AGENCY
16.0
References
40 CFR Part 122
13.1 Analyzer Calibration Error. At
each calibration gas level (low, mid, and
high), the calibration error must either
not exceed 5.0 percent of the calibration
gas concentration or ⎢CDir¥Cv⎢ must be
≤0.5 ppmv.
13.2 System Performance. Each
system performance check must not
deviate from the system performance
gas concentration by more than 20
percent. Alternatively, the results are
acceptable if ⎢Cs¥CH2S⎢ is ≤0.5 ppmv.
13.3 Calibration Drift. The
calibration drift at the end of any run or
series of runs within a 24-hour period
must not differ by more than 3.0 percent
from the original ACE at the test
concentration level or ⎢ACEi¥ACEn⎢
must not exceed 0.5 ppmv.
13.4 Interference Check. For the
analyzer, the total interference response
(i.e., the sum of the interference
responses of all tested gaseous
components) must not be greater than
2.5 percent of the calibration span. Any
interference is also acceptable if the sum
of the responses does not exceed 0.5
ppmv for a calibration span of 5 to 10
ppmv, or 0.2 ppmv for a calibration
span <5 ppmv.
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1. The references are the same as in Section
16.0 of Method 16, Section 17.0 of
Method 16A, and Section 17.0 of Method
6C.
2. National Council of the Paper Industry for
Air and Stream Improvement, Inc,. A
Study of TRS Measurement Methods.
Technical Bulletin No. 434. New York,
NY. May 1984. 12p.
3. Margeson, J.H., J.E. Knoll, and M.R.
Midgett. A Manual Method for TRS
Determination. Draft available from the
authors. Source Branch, Quality
Assurance Division, U.S. Environmental
Protection Agency, Research Triangle
Park, NC 27711.
17.0 Tables, Diagrams, Flowcharts,
and Validation Data [Reserved]
*
*
*
*
*
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[EPA–HQ–OW–2012–0142; FRL–9705–6]
RIN 2040–AF40
National Pollutant Discharge
Elimination System Permit Regulation
for Concentrated Animal Feeding
Operations: Removal of Vacated
Elements in Response to 2011 Court
Decision
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The EPA is amending its
regulations to eliminate the requirement
that an owner or operator of a
Concentrated Animal Feeding Operation
(CAFO) that ‘‘proposes to discharge’’
must apply for a National Pollutant
Discharge Elimination System (NPDES)
Permit. This rulemaking also removes
the voluntary certification option for
unpermitted CAFOs because removal of
the ‘‘propose to discharge’’ requirement
renders the certification option
unnecessary. Its purpose had been to
allow CAFO owners and operators to
certify that they were not violating the
requirement that owners or operators of
CAFOs that propose to discharge must
seek permit coverage. Both of these
SUMMARY:
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ER30JY12.177</GPH> ER30JY12.178</GPH>
Method Performance
ER30JY12.176</GPH>
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12.4 Calibration Drift. Use Equation
16C–3 to calculate the calibration drift
at a single concentration level after a
44495
Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Rules and Regulations
provisions were included in the EPA’s
rulemaking entitled ‘‘Revised National
Pollutant Discharge Elimination System
Permit Regulation and Effluent
Limitations Guidelines for Concentrated
Animal Feeding Operations in Response
to the Waterkeeper Decision,’’ (the 2008
CAFO Rule).
DATES: This final rule is effective on July
30, 2012.
ADDRESSES: The record for this
rulemaking is available for inspection
and copying at the Water Docket,
located at the EPA Docket Center (EPA/
DC), EPA West 1301 Constitution Ave.
NW., Washington, DC 20004. The record
is also available via the EPA Dockets at
https://www.regulations.gov under
docket number EPA–HQ–OW–2012–
0142. The rule and key supporting
documents are also available
electronically on the Internet at https://
www.epa.gov/npdes/caforule.
FOR FURTHER INFORMATION CONTACT: For
further information contact Louis Eby,
Water Permits Division, Office of
Wastewater Management (4203M),
Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington,
DC 20460, telephone number: (202)
564–6599, email address:
eby.louis@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
II. Background and Rationale for Action
III. Implementation
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
V. Statutory Authority
I. General Information
A. Does this action apply to me?
This action applies to CAFOs as
specified in section 502(14) of the Clean
Water Act (CWA), 33 U.S.C. 1362(14)
and defined in the NPDES regulations at
40 CFR 122.23. Table 1.1 provides a list
of standard industrial codes for
operations potentially regulated under
this revised rule. The rule also applies
to States and Tribes with authorized
NPDES Programs.
TABLE 1.1—OPERATIONS POTENTIALLY REGULATED BY THIS RULE
Category
Industry
Operators of animal production operations that meet the definition of a CAFO:
Beef cattle feedlots (including veal calves) ........................................................
Beef cattle ranching and farming ........................................................................
Hogs ....................................................................................................................
Sheep and Goats ................................................................................................
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
affected by this action. Other types of
entities not listed in the table could also
be affected. To determine whether your
facility would be affected by this action,
you should carefully examine the
definitions and other provisions of 40
CFR 122.23.
tkelley on DSK3SPTVN1PROD with RULES
II. Background and Rationale for
Action
On November 20, 2008, the EPA
published a final rule (73 FR 70418) that
revised the NPDES permitting
requirements and Effluent Limitations
Guidelines and Standards for CAFOs in
response to the order issued by the U.S.
Court of Appeals for the Second Circuit
in Waterkeeper Alliance et al. v. EPA,
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North American
Industry
Classification
System (NAICS)
Examples of regulated entities
17:13 Jul 27, 2012
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399 F.3d 486 (2d Cir. 2005). The 2008
CAFO Rule included a number of
changes, including a requirement that
CAFO owners or operators that
discharge or propose to discharge must
apply for an NPDES permit. The 2008
CAFO Rule also created a voluntary
option for unpermitted CAFO owners
and operators to certify to the permitting
authority that the CAFO does not
discharge or propose to discharge.
On March 15, 2011, the United States
Court of Appeals for the Fifth Circuit
(the Court) issued an opinion that,
among other things, vacated those
portions of the 2008 CAFO Rule
requiring CAFOs that propose to
discharge to apply for an NPDES permit.
National Pork Producers Council v.
EPA, 635 F.3d 738, 756 (5th Cir. 2011).
This action removes from the Code of
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112112
112111
11221
11241, 11242
11299
11212
11232
11231
11233
11234
11239
11239
11292
Standard
Industrial
Classification
(SIC)
0211
0212
0213
0214
0219
0241
0251
0252
0253
0254
0259
0259
0272
Federal Regulations (CFR) the specific
‘‘propose to discharge’’ requirement in
40 CFR 122.23(d).
Today’s action also deletes the timing
requirements in 40 CFR 122.23(f) related
to when CAFO owners and operators
must seek coverage under an NPDES
permit. These provisions extended the
time by which facilities newly required
to obtain NPDES permits must apply for
a permit. The date-specific deadlines in
those sections have passed. The revision
clarifies that all CAFOs must have a
permit at the time that they discharge.
The rule also removes 40 CFR
122.23(g) to make conforming changes
to EPA’s requirements for renewing
permit coverage.
Also, this action removes from the
CFR the option in 40 CFR 122.23(i) and
(j) for owners and operators to
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Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Rules and Regulations
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voluntarily certify that a CAFO does not
discharge or propose to discharge. The
option provides that properly certified
CAFOs would ‘‘not be in violation of the
requirement that CAFOs that propose to
discharge seek permit coverage. * * *’’
Removing the requirement that CAFOs
apply for permits if they ‘‘propose to
discharge’’ renders the option to certify
unnecessary and therefore the EPA is
eliminating it.
The EPA is not providing an
opportunity for comment on this final
rule. The Administrative Procedure Act
of 1946 (APA) makes provision for the
procedural path we are following in this
action. In general, the APA requires that
general notice of proposed rulemaking
shall be published in the Federal
Register. Such notice must provide an
opportunity for public participation in
the rulemaking process. The APA does
provide an avenue for an agency to
directly issue a final rulemaking in
certain specific instances. This may
occur, in particular, when an agency for
good cause finds (and incorporates the
finding and a brief statement of reasons
therefore in the rules issued) that notice
and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest. See 5 U.S.C.
553(b)(3)(B).
The EPA finds that a notice-andcomment rulemaking is unnecessary
and not in the public interest because
this action is ministerial in nature. The
EPA has no discretion given the specific
circumstances presented in the Court’s
opinion. The EPA is bound by the
decisions of the court and must act in
accordance with that decision. The EPA
accepts the decision of the Court that
vacated the requirement that CAFOs
that propose to discharge apply for
NPDES permits and the EPA lacks
discretion to reach a different
conclusion. Providing an opportunity
for notice and comment is therefore
unnecessary and would not serve any
public interest.
III. Implementation
For the reasons cited above, the EPA
is making this action effective upon
publication. See 5 U.S.C. 553(d)(3). This
action removes content from the CFR
that has been found to be contrary to the
CWA by a United States Court of
Appeals. This is a ministerial but
necessary action on the part of the EPA.
Given the EPA’s lack of discretion in
this matter, the EPA has good cause to
act in the public interest to implement
the court’s remedy by amending the
CFR without delay.
The deadline has passed by which
states were required to make any
changes to their approved state NPDES
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program legal authorities necessary to
conform to the 2008 CAFO Rule. States
that have not yet done so must make the
necessary changes to conform to the
2008 CAFO Rule, less the vacated
provisions.
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866 (Regulatory
Planning and Executive Order 13563:
Improving Regulation and Regulatory
Review)
This rule withdraws Federal
requirements applicable to CAFOs that
propose to discharge as well as the
option to certify that a CAFO does not
discharge or propose to discharge. It
imposes no regulatory requirements on
any person or entity, does not interfere
with the action or planned action of
another agency, and does not have any
budgetary impacts or raise novel legal or
policy issues. The rule imposes no
additional cost on the regulated
community. The rule imposes no
additional effort on the State regulators.
Thus, this rule is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and Executive Order
13563 (76 FR 3821, January 21, 2011)
and is therefore not subject to review
under the Executive Orders.
B. Paperwork Reduction Act
This rule does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.),
because it is administratively
withdrawing Federal requirements.
C. Regulatory Flexibility Act
Today’s final rule is not subject to the
Regulatory Flexibility Act (RFA), which
generally requires an agency to prepare
a regulatory flexibility analysis for any
rule that will have a significant
economic impact on a substantial
number of small entities. The RFA
applies only to rules subject to notice
and comment rulemaking requirements
under the Administrative Procedure Act
(APA) or any other statute. Although the
rule is subject to the APA, the Agency
has invoked the ‘‘good cause’’
exemption under 5 USC 553(b),
therefore it is not subject to the notice
and comment requirement.
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or tribal
governments or the private sector. The
action imposes no enforceable duty on
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any State, local or tribal governments or
the private sector. Therefore, this action
is not subject to the requirements of
sections 202 or 205 of the UMRA.
Similarly, the EPA has determined that
this rule contains no regulatory
requirements that might significantly or
uniquely affect small governments and
is therefore not subject to UMRA section
203.
E. Executive Order 13132 (Federalism)
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires the EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’
This rule does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. This rule
imposes no regulatory requirements on
any State, Tribal, or local government.
Thus, Executive Order 13132 does not
apply to this rule.
F. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (59 FR
22951, November 9, 2000), requires the
EPA to develop an accountable process
to ensure ‘‘meaningful and timely input
by tribal officials in the development of
regulatory policies that have tribal
implications.’’ This rule does not have
tribal implications, as specified in
Executive Order 13175. It imposes no
regulatory requirements or costs on any
Tribal government. It does not have
substantial direct effects on Tribal
governments, on the relationship
between the Federal government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal government and Indian tribes.
Thus, Executive Order 13175 does not
apply to this rule.
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Federal Register / Vol. 77, No. 146 / Monday, July 30, 2012 / Rules and Regulations
G. Executive Order 13045 (Protection of
Children From Environmental Health
and Safety Risks)
This rule is not subject to Executive
Order 13045, entitled ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it is not
economically significant as defined in
Executive Order 12866, and the EPA has
no reason to believe the environmental
health or safety risks addressed by this
rule present a disproportionate risk to
children.
populations and low-income
populations in the United States.
The 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
merely removes regulations that were
vacated by the U.S. Court of Appeals
and, therefore, does not affect the level
of protection provided to human health
or the environment.
H. Executive Order 13211 (Actions That
Significantly Affect Energy Supply,
Distribution, or Use)
This 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.
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. Section 808 allows
the issuing agency to make a rule
effective sooner than otherwise
provided by the CRA if the agency
makes a good cause finding that notice
and public procedure is impracticable,
unnecessary or contrary to the public
interest. This determination must be
supported by a brief statement. 5 U.S.C.
808(2). As stated previously, EPA has
made such a good cause finding,
including the reasons therefor, and
established an effective date of July 30,
2012. 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. This action is not
a ‘‘major rule’’ as defined by 5 U.S.C.
804(2).
tkelley on DSK3SPTVN1PROD with RULES
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. NTTAA directs the
EPA to provide Congress, through the
Office of Management and Budget,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards.
This rule does not involve technical
standards. Therefore, the EPA did not
consider the use of any voluntary
consensus standards.
J. Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations)
Executive Order 12898 (59 FR 7629,
February 16, 1994) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
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K. Congressional Review Act
V. Statutory Authority
This rule is issued under the authority
of sections 101, 301, 304, 306, 308, 402,
and 501 of the CWA. 33 U.S.C. 1251,
1311, 1314, 1316, 1317, 1318, 1342, and
1361.
List of Subjects in 40 CFR Part 122
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous substances, Reporting and
recordkeeping requirements, Water
pollution control.
Dated: July 19, 2012.
Lisa P. Jackson,
Administrator.
For the reasons set out in the
preamble, 40 CFR part 122 is amended
as follows:
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44497
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
■
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
2. Section 122.23 is amended as
follows:
■ a. By revising the heading of
paragraph (d).
■ b. By revising paragraph (d)(1).
■ c. By revising paragraph (f).
■ d. By removing and reserving
paragraph (g).
■ e. By removing paragraphs (i) and (j).
■
§ 122.23 Concentrated animal feeding
operations (applicable to State NPDES
programs, see § 123.25).
*
*
*
*
*
(d) NPDES permit authorization.—(1)
Permit Requirement. A CAFO must not
discharge unless the discharge is
authorized by an NPDES permit. In
order to obtain authorization under an
NPDES permit, the CAFO owner or
operator must either apply for an
individual NPDES permit or submit a
notice of intent for coverage under an
NPDES general permit.
*
*
*
*
*
(f) By when must the owner or
operator of a CAFO have an NPDES
permit if it discharges? A CAFO must be
covered by a permit at the time that it
discharges.
*
*
*
*
*
[FR Doc. 2012–18378 Filed 7–27–12; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 65
[Docket ID FEMA–2012–0003; Internal
Agency Docket No. FEMA–B–1260]
Changes in Flood Elevation
Determinations
Federal Emergency
Management Agency, DHS.
ACTION: Interim rule.
AGENCY:
This interim rule lists
communities where modification of the
Base (1% annual-chance) Flood
Elevations (BFEs) is appropriate because
of new scientific or technical data. New
flood insurance premium rates will be
calculated from the modified BFEs for
new buildings and their contents.
SUMMARY:
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]]>Agencies
[Federal Register Volume 77, Number 146 (Monday, July 30, 2012)]
[Rules and Regulations]
[Pages 44494-44497]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18378]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 122
[EPA-HQ-OW-2012-0142; FRL-9705-6]
RIN 2040-AF40
National Pollutant Discharge Elimination System Permit Regulation
for Concentrated Animal Feeding Operations: Removal of Vacated Elements
in Response to 2011 Court Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is amending its regulations to eliminate the
requirement that an owner or operator of a Concentrated Animal Feeding
Operation (CAFO) that ``proposes to discharge'' must apply for a
National Pollutant Discharge Elimination System (NPDES) Permit. This
rulemaking also removes the voluntary certification option for
unpermitted CAFOs because removal of the ``propose to discharge''
requirement renders the certification option unnecessary. Its purpose
had been to allow CAFO owners and operators to certify that they were
not violating the requirement that owners or operators of CAFOs that
propose to discharge must seek permit coverage. Both of these
[[Page 44495]]
provisions were included in the EPA's rulemaking entitled ``Revised
National Pollutant Discharge Elimination System Permit Regulation and
Effluent Limitations Guidelines for Concentrated Animal Feeding
Operations in Response to the Waterkeeper Decision,'' (the 2008 CAFO
Rule).
DATES: This final rule is effective on July 30, 2012.
ADDRESSES: The record for this rulemaking is available for inspection
and copying at the Water Docket, located at the EPA Docket Center (EPA/
DC), EPA West 1301 Constitution Ave. NW., Washington, DC 20004. The
record is also available via the EPA Dockets at https://www.regulations.gov under docket number EPA-HQ-OW-2012-0142. The rule
and key supporting documents are also available electronically on the
Internet at https://www.epa.gov/npdes/caforule.
FOR FURTHER INFORMATION CONTACT: For further information contact Louis
Eby, Water Permits Division, Office of Wastewater Management (4203M),
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460, telephone number: (202) 564-6599, email address:
eby.louis@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
II. Background and Rationale for Action
III. Implementation
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
V. Statutory Authority
I. General Information
A. Does this action apply to me?
This action applies to CAFOs as specified in section 502(14) of the
Clean Water Act (CWA), 33 U.S.C. 1362(14) and defined in the NPDES
regulations at 40 CFR 122.23. Table 1.1 provides a list of standard
industrial codes for operations potentially regulated under this
revised rule. The rule also applies to States and Tribes with
authorized NPDES Programs.
Table 1.1--Operations Potentially Regulated by This Rule
----------------------------------------------------------------------------------------------------------------
North American Standard
Industry Industrial
Category Examples of regulated entities Classification Classification
System (NAICS) (SIC)
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Industry Operators of animal production operations
that meet the definition of a CAFO:
Beef cattle feedlots (including veal 112112 0211
calves).
Beef cattle ranching and farming........ 112111 0212
Hogs.................................... 11221 0213
Sheep and Goats......................... 11241, 11242 0214
General livestock except dairy and 11299 0219
poultry.
Dairy farms............................. 11212 0241
Broilers, fryers, and roaster chickens.. 11232 0251
Chicken eggs............................ 11231 0252
Turkey and turkey eggs.................. 11233 0253
Poultry hatcheries...................... 11234 0254
Poultry and eggs........................ 11239 0259
Ducks................................... 11239 0259
Horses and other equines................ 11292 0272
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in the table could also be
affected. To determine whether your facility would be affected by this
action, you should carefully examine the definitions and other
provisions of 40 CFR 122.23.
II. Background and Rationale for Action
On November 20, 2008, the EPA published a final rule (73 FR 70418)
that revised the NPDES permitting requirements and Effluent Limitations
Guidelines and Standards for CAFOs in response to the order issued by
the U.S. Court of Appeals for the Second Circuit in Waterkeeper
Alliance et al. v. EPA, 399 F.3d 486 (2d Cir. 2005). The 2008 CAFO Rule
included a number of changes, including a requirement that CAFO owners
or operators that discharge or propose to discharge must apply for an
NPDES permit. The 2008 CAFO Rule also created a voluntary option for
unpermitted CAFO owners and operators to certify to the permitting
authority that the CAFO does not discharge or propose to discharge.
On March 15, 2011, the United States Court of Appeals for the Fifth
Circuit (the Court) issued an opinion that, among other things, vacated
those portions of the 2008 CAFO Rule requiring CAFOs that propose to
discharge to apply for an NPDES permit. National Pork Producers Council
v. EPA, 635 F.3d 738, 756 (5th Cir. 2011). This action removes from the
Code of Federal Regulations (CFR) the specific ``propose to discharge''
requirement in 40 CFR 122.23(d).
Today's action also deletes the timing requirements in 40 CFR
122.23(f) related to when CAFO owners and operators must seek coverage
under an NPDES permit. These provisions extended the time by which
facilities newly required to obtain NPDES permits must apply for a
permit. The date-specific deadlines in those sections have passed. The
revision clarifies that all CAFOs must have a permit at the time that
they discharge.
The rule also removes 40 CFR 122.23(g) to make conforming changes
to EPA's requirements for renewing permit coverage.
Also, this action removes from the CFR the option in 40 CFR
122.23(i) and (j) for owners and operators to
[[Page 44496]]
voluntarily certify that a CAFO does not discharge or propose to
discharge. The option provides that properly certified CAFOs would
``not be in violation of the requirement that CAFOs that propose to
discharge seek permit coverage. * * *'' Removing the requirement that
CAFOs apply for permits if they ``propose to discharge'' renders the
option to certify unnecessary and therefore the EPA is eliminating it.
The EPA is not providing an opportunity for comment on this final
rule. The Administrative Procedure Act of 1946 (APA) makes provision
for the procedural path we are following in this action. In general,
the APA requires that general notice of proposed rulemaking shall be
published in the Federal Register. Such notice must provide an
opportunity for public participation in the rulemaking process. The APA
does provide an avenue for an agency to directly issue a final
rulemaking in certain specific instances. This may occur, in
particular, when an agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefore in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest. See 5 U.S.C.
553(b)(3)(B).
The EPA finds that a notice-and-comment rulemaking is unnecessary
and not in the public interest because this action is ministerial in
nature. The EPA has no discretion given the specific circumstances
presented in the Court's opinion. The EPA is bound by the decisions of
the court and must act in accordance with that decision. The EPA
accepts the decision of the Court that vacated the requirement that
CAFOs that propose to discharge apply for NPDES permits and the EPA
lacks discretion to reach a different conclusion. Providing an
opportunity for notice and comment is therefore unnecessary and would
not serve any public interest.
III. Implementation
For the reasons cited above, the EPA is making this action
effective upon publication. See 5 U.S.C. 553(d)(3). This action removes
content from the CFR that has been found to be contrary to the CWA by a
United States Court of Appeals. This is a ministerial but necessary
action on the part of the EPA. Given the EPA's lack of discretion in
this matter, the EPA has good cause to act in the public interest to
implement the court's remedy by amending the CFR without delay.
The deadline has passed by which states were required to make any
changes to their approved state NPDES program legal authorities
necessary to conform to the 2008 CAFO Rule. States that have not yet
done so must make the necessary changes to conform to the 2008 CAFO
Rule, less the vacated provisions.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Executive Order
13563: Improving Regulation and Regulatory Review)
This rule withdraws Federal requirements applicable to CAFOs that
propose to discharge as well as the option to certify that a CAFO does
not discharge or propose to discharge. It imposes no regulatory
requirements on any person or entity, does not interfere with the
action or planned action of another agency, and does not have any
budgetary impacts or raise novel legal or policy issues. The rule
imposes no additional cost on the regulated community. The rule imposes
no additional effort on the State regulators. Thus, this rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR
3821, January 21, 2011) and is therefore not subject to review under
the Executive Orders.
B. Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.), because it is administratively withdrawing Federal
requirements.
C. Regulatory Flexibility Act
Today's final rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities. The RFA applies only
to rules subject to notice and comment rulemaking requirements under
the Administrative Procedure Act (APA) or any other statute. Although
the rule is subject to the APA, the Agency has invoked the ``good
cause'' exemption under 5 USC 553(b), therefore it is not subject to
the notice and comment requirement.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA.
Similarly, the EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments and is therefore not subject to UMRA section 203.
E. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This rule imposes no regulatory
requirements on any State, Tribal, or local government. Thus, Executive
Order 13132 does not apply to this rule.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000),
requires the EPA to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' This rule does not
have tribal implications, as specified in Executive Order 13175. It
imposes no regulatory requirements or costs on any Tribal government.
It does not have substantial direct effects on Tribal governments, on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.
[[Page 44497]]
G. Executive Order 13045 (Protection of Children From Environmental
Health and Safety Risks)
This rule is not subject to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant as defined in Executive Order 12866, and the EPA has no
reason to believe the environmental health or safety risks addressed by
this rule present a disproportionate risk to children.
H. Executive Order 13211 (Actions That Significantly Affect Energy
Supply, Distribution, or Use)
This 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.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs the EPA to provide
Congress, through the Office of Management and Budget, explanations
when the Agency decides not to use available and applicable voluntary
consensus standards.
This rule does not involve technical standards. Therefore, the EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
The 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 merely removes
regulations that were vacated by the U.S. Court of Appeals and,
therefore, does not affect the level of protection provided to human
health or the environment.
K. Congressional Review Act
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. Section 808 allows the issuing agency to make a rule
effective sooner than otherwise provided by the CRA if the agency makes
a good cause finding that notice and public procedure is impracticable,
unnecessary or contrary to the public interest. This determination must
be supported by a brief statement. 5 U.S.C. 808(2). As stated
previously, EPA has made such a good cause finding, including the
reasons therefor, and established an effective date of July 30, 2012.
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. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).
V. Statutory Authority
This rule is issued under the authority of sections 101, 301, 304,
306, 308, 402, and 501 of the CWA. 33 U.S.C. 1251, 1311, 1314, 1316,
1317, 1318, 1342, and 1361.
List of Subjects in 40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
Dated: July 19, 2012.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, 40 CFR part 122 is amended
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.
0
2. Section 122.23 is amended as follows:
0
a. By revising the heading of paragraph (d).
0
b. By revising paragraph (d)(1).
0
c. By revising paragraph (f).
0
d. By removing and reserving paragraph (g).
0
e. By removing paragraphs (i) and (j).
Sec. 122.23 Concentrated animal feeding operations (applicable to
State NPDES programs, see Sec. 123.25).
* * * * *
(d) NPDES permit authorization.--(1) Permit Requirement. A CAFO
must not discharge unless the discharge is authorized by an NPDES
permit. In order to obtain authorization under an NPDES permit, the
CAFO owner or operator must either apply for an individual NPDES permit
or submit a notice of intent for coverage under an NPDES general
permit.
* * * * *
(f) By when must the owner or operator of a CAFO have an NPDES
permit if it discharges? A CAFO must be covered by a permit at the time
that it discharges.
* * * * *
[FR Doc. 2012-18378 Filed 7-27-12; 8:45 am]
BILLING CODE 6560-50-P
