26582 Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Proposed Rules 

Statutory and Executive Order Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this proposed 

action is not a ‘‘significant regulatory 

action’’ and therefore is not subject to 

review by the Office of Management and 

Budget. For this reason, this action is 

also not subject to Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)). This action merely proposes 

to approve state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this 

proposed rule will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). Because this rule proposes to 

approve pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). This rule also does not 

have a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000), nor 

will it 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 (64 FR 43255, 

August 10, 1999), because it merely 

proposes to approve a state rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. This proposed rule also is not 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997), because it 

approves a state rule implementing a 

Federal standard. In reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. In this 

context, in the absence of a prior 

existing requirement for the State to use 

voluntary consensus standards (VCS), 

EPA has no authority to disapprove a 

SIP submission for failure to use VCS. 

It would thus be inconsistent with 

applicable law for EPA, when it reviews 

a SIP submission, to use VCS in place 

of a SIP submission that otherwise 

satisfies the provisions of the Clean Air 

Act. Thus, the requirements of section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) do not apply. As 

required by section 3 of Executive Order 

12988 (61 FR 4729, February 7, 1996), 

in issuing this proposed rule, EPA has 

taken the necessary steps to eliminate 

drafting errors and ambiguity, minimize 

potential litigation, and provide a clear 

legal standard for affected conduct. EPA 

has complied with Executive Order 

12630 (53 FR 8859, March 15, 1988) by 

examining the takings implications of 

the rule in accordance with the 

‘‘Attorney General’s Supplemental 

Guidelines for the Evaluation of Risk 

and Avoidance of Unanticipated 

Takings’’ issued under the executive 

order. This proposed 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.). Under the 

Administrative Procedure Act or any 

other statute, it is not subject to the 

provisions of the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). 

Dated: May 4, 2007. 

James W. Newsom, 

Acting Regional Administrator, Region III. 

[FR Doc. E7–9010 Filed 5–9–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 122 and 412 

[EPA–HQ–OW–2005–0036; FRL–8311–4] 

RIN 2040–AE92 

Proposed Revised Compliance Dates 

Under the National Pollutant Discharge 

Elimination System Permit Regulations 

and Effluent Limitations Guidelines 

and Standards for Concentrated 

Animal Feeding Operations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to extend 

certain compliance dates in the National 

Pollutant Discharge Elimination System 

(NPDES) permitting requirements and 

Effluent Limitations Guidelines and 

Standards (ELGs) for concentrated 

animal feeding operations (CAFOs) 

while EPA works to complete 

rulemaking to respond to the decision of 

the Second Circuit Court of Appeals in 

Waterkeeper Alliance et al. v. EPA, 399 

F.3d 486 (2nd Cir. 2005). The sole 

purpose of this proposed rule is to 

address timing issues associated with 

the Agency’s response to the 

Waterkeeper decision. 

This proposal would revise the dates 

established in the 2003 CAFO rule and 

later modified by a rule published in the 

Federal Register on February 10, 2006, 

by which facilities newly defined as 

CAFOs are required to seek permit 

coverage and by which all permitted 

CAFOs are required to develop and 

implement their nutrient management 

plans (NMPs). EPA is proposing to 

extend the date by which operations 

defined as CAFOs as of April 14, 2003, 

that were not defined as CAFOs prior to 

that date, must seek NPDES permit 

coverage, from July 31, 2007, to 

February 27, 2009. EPA is also 

proposing to amend the date by which 

operations that become defined as 

CAFOs after April 14, 2003, due to 

operational changes that would not have 

made them a CAFO prior to April 14, 

2003, and that are not new sources, 

must seek NPDES permit coverage, from 

July 31, 2007, to February 27, 2009. 

Finally, EPA is proposing to extend the 

deadline by which permitted CAFOs are 

required to develop and implement 

NMPs, from July 31, 2007, to February 

27, 2009. 

DATES: Comments on this proposed 

action must be received on or before 

June 11, 2007. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ–

OW–2005–0036 by one of the following 

methods 

(1) www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

(2) E-mail: ow-docket@epa.gov, 

Attention Docket ID No. EPA–HQ–OW–

2005–0036. 

(3) Mail: Send the original and three 

copies of your comments to: Water 

Docket, Environmental Protection 

Agency, Mail code 2822T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460, Attention Docket ID No. OW–

2005–0036. 

(4) Hand Delivery: Deliver your 

comments to: EPA Docket Center, EPA 

West, Room 3334, 1301 Constitution 

Avenue, NW., Washington, DC, 

Attention Docket ID No. OW–2005–

0036. Such deliveries are only accepted 

during the Docket’s normal hours of 

operation and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2005–

0036. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 


ycherry on PROD1PC64 with PROPOSALS
Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Proposed Rules 26583 

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 information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through www.regulations.gov your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Water Docket in the EPA Docket 

Center, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Water 

Docket is (202) 566–2426. 

FOR FURTHER INFORMATION CONTACT: 

Rebecca Roose, Water Permits Division, 

Office of Wastewater Management 

(4203M), Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460; telephone 

number: (202) 564–0758, e-mail address: 

roose.rebecca@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Action Apply to Me? 

B. What Should I Consider as I Prepare My 

Comments for EPA? 

II. Background 

A. The Clean Water Act 

B. History of Actions to Address CAFOs 

Under the NPDES Permitting Program 

C. Status of EPA’s Response to the 

Waterkeeper Decision 

D. History of CAFO Compliance Dates 

III. This Proposed Rule 

A. Application Deadline for Newly Defined 

CAFOs 

B. Deadline for Nutrient Management Plans 

IV. Rationale for This Action 

V. Statutory and Executive Order Reviews 

I. General Information 

A. Does This Action Apply to Me? 

This action applies to concentrated 

animal feeding operations (CAFOs) as 

defined in section 502(14) of the Clean 

Water Act and in the NPDES regulations 

at 40 CFR 122.23. The following table 

provides a list of standard industrial 

codes for operations covered under this 

revised rule. 

TABLE 1.—ENTITIES POTENTIALLY REGULATED BY THIS RULE

Category Examples of regulated entities 

North American 

industry code 

(NAIC) 

Standard industrial 

classification code 

Federal, State, and Local Government: 

Industry ........................................ Operators of animal production operations that meet the definition 

of a CAFO: 

Beef cattle feedlots (including veal) .............................................. 112112 0211 

Beef cattle ranching and farming .................................................. 112111 0212 

Hogs .............................................................................................. 11221 0213 

Sheep ............................................................................................ 11241, 

11242 

0214 

General livestock except dairy and poultry ................................... 11299 0219 

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 ............................................................................................. 112390 0259 

Horses and other equines ............................................................. 11292 0272 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could potentially be regulated by 

this action. Other types of entities not 

listed in the table could also be 

regulated. To determine whether your 

facility may be regulated under this 

rulemaking, you should carefully 

examine the applicability criteria in 40 

CFR 122.23. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting Confidential Business 

Information. Do not submit this 

information to EPA through 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 


ycherry on PROD1PC64 with PROPOSALS
26584 Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Proposed Rules 

1To improve readability in this preamble, 

reference is made to ‘‘CAFOs’’ as well as ‘‘owners 

and operators of CAFOs.’’ No change in meaning is 

intended. 

2Note that in response to the Waterkeeper 

decision, EPA proposed a variation to the ‘‘develop 

and implement’’ language of the June 2006 proposal 

which stated that a CAFO operator must submit an 

NMP with its permit application or NOI and that 

it must be implemented upon permit coverage. 71 

FR 37744. 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR Part 2. 

2. Tips for Preparing Your Comments. 

It will be helpful if you follow these 

guidelines as you prepare your written 

comments: 

i. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

ii. Follow directions—The Agency 

may ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

iii. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

iv. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

v. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

vi. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

vii. Explain your views as clearly as 

possible. 

viii. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

A. The Clean Water Act 

Congress passed the Federal Water 

Pollution Control Act (1972), also 

known as the Clean Water Act (CWA), 

to ‘‘restore and maintain the chemical, 

physical, and biological integrity of the 

nation’s waters.’’ 33 U.S.C. 1251(a). 

Among its core provisions, the CWA 

established the NPDES permit program 

to authorize and regulate the discharge 

of pollutants from point sources to 

waters of the U.S. 33 U.S.C. 1342. EPA 

has issued comprehensive regulations 

that implement the NPDES program at 

40 CFR Part 122. The Act also provided 

for the development of technologybased and water quality-based effluent 

limitations that are imposed through 

NPDES permits to control the discharge 

of pollutants from point sources. CWA 

Section 301(a) and (b). 

B. History of Actions To Address CAFOs 

Under the NPDES Permitting Program 

EPA’s regulation of wastewater and 

manure from CAFOs dates from the 

1970s. EPA initially issued national 

effluent limitations guidelines and 

standards for feedlots on February 14, 

1974, (39 FR 5704) and NPDES CAFO 

regulations on March 18, 1976 (41 FR 

11458). 

In February 2003, EPA revised these 

regulations. 68 FR 7176 (the ‘‘2003 

CAFO rule’’). The 2003 CAFO rule 

required owners or operators of all 

CAFOs1 to seek coverage under an 

NPDES permit, unless they 

demonstrated no potential to discharge. 

CAFO industry organizations (American 

Farm Bureau Federation, National Pork 

Producers Council, National Chicken 

Council, and National Turkey 

Federation (NTF), although NTF later 

withdrew its petition) and 

environmental groups (Waterkeeper 

Alliance, Natural Resources Defense 

Council, Sierra Club, and American 

Littoral Society) filed petitions for 

judicial review of certain aspects of the 

2003 CAFO rule. This case was brought 

before the U.S. Court of Appeals for the 

Second Circuit. On February 28, 2005, 

the court ruled on these petitions and 

upheld most provisions of the 2003 rule 

but vacated and/or remanded others. 

Waterkeeper Alliance et al. v. EPA, 399 

F.3d 486 (2nd Cir. 2005) (hereafter 

referred to as Waterkeeper). Notably, the 

court vacated the requirement that all 

CAFOs apply for NPDES permit 

coverage unless a CAFO demonstrates 

no potential to discharge. The court also 

remanded the rule for failing to require 

incorporation of the terms of CAFOs’

NMPs into their permits and for failing 

to prescribe public review and comment 

and permitting authority approval of the 

terms of the NMPs. Other provisions 

were remanded for further clarification 

and analysis. 

C. Status of EPA’s Response to the 

Waterkeeper Decision 

On June 30, 2006, EPA published a 

proposed rule in response to the 

Waterkeeper decision. 71 FR 37744. 

EPA proposed to revise several aspects 

of the Agency’s regulations governing 

discharges from CAFOs. In summary, 

EPA proposed to require only owners or 

operators of those CAFOs that discharge 

or propose to discharge to seek coverage 

under a permit. Second, EPA proposed 

to require CAFOs seeking coverage 

under a permit to submit their NMP 

with their application for an individual 

permit or, for general permit coverage, 

with their notice of intent to be 

authorized to discharge under a general 

permit. Permitting authorities would be 

required to review the NMP and provide 

the public with an opportunity for 

meaningful public review and comment. 

Permitting authorities would also be 

required to incorporate terms of the 

NMP as NPDES permit conditions. The 

proposed rule also addressed the 

remand of issues for further clarification 

and analysis. These issues concern the 

applicability of water-quality based 

effluent limitations (WQBELs); the 

record supporting new source 

performance standards for swine, 

poultry, and veal CAFOs; and the record 

support for ‘‘best conventional 

technology’’ effluent limitations 

guidelines for pathogens. The proposed 

rule reflected the dates for compliance 

as revised in February 2006; i.e., July 31, 

2007, for permit application by newly 

defined CAFOs and NMP development 

and implementation by all permitted 

CAFOs. The public comment period for 

the June 2006 CAFO proposal closed on 

Aug. 29, 2006. EPA will respond to 

these comments when it takes final 

action on the June 30, 2006, proposed 

rule. 

In this action, EPA is proposing, and 

accepting comment only on, a change to 

the date by which certain operations 

must seek coverage under an NPDES 

permit and the date by which all 

permitted CAFOs must develop and 

implement their NMPs.2 In part because 

of extensive and widely divergent 

public comment on the array of issues 

raised by the court, EPA will not 

complete a final rule revising the 2003 

CAFO rule before the current 

compliance dates of July 31, 2007, and 

is, therefore, proposing to revise this 

compliance date. Though EPA describes 

them here for context, the proposed 

provisions in the June 2006 proposed 

rule in response to Waterkeeper are 

beyond the scope of this current 

proposal, and EPA is not taking 

comment on these provisions. 

D. History of CAFO Compliance Dates 

The 2003 CAFO rule amended the 

definition of ‘‘CAFO’’ to add facilities 

that had not previously been defined as 

CAFOs (in the 1976 regulations). 40 CFR 

122.23(b). Operations newly defined as 

CAFOs in the 2003 CAFO rule included 

veal operations, swine weighing less 

than 55 pounds, chicken and layer 

operations using other than liquid 

manure handling systems, and animal 

feeding operations (AFOs) that were 


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Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Proposed Rules 26585 

previously not defined as CAFOs 

because they discharged only in the 

event of a 25-year/24-hour storm. 

CAFOs in these categories that were in 

existence when the 2003 CAFO rule 

took effect (April 14, 2003) represent the 

group of CAFOs that were initially 

subject to a February 13, 2006, deadline 

for permit application. 68 FR 7267. In 

addition, other existing facilities that 

became defined as CAFOs under the 

revised CAFO definitions in the 2003 

CAFO rule include so-called ‘‘new 

dischargers’’ that subsequent to the 

effective date of the 2003 CAFO rule 

became CAFOs due to changes in their 

operations, where such changes would 

not have made the operation a CAFO 

prior to April 14, 2003. This second 

group of facilities was initially required 

to seek permit coverage by April 13, 

2006, or 90 days after becoming defined 

as a CAFO, whichever date is later. 68 

FR 7268. Thus, each of these groups of 

CAFOs were allowed three years from 

the 2003 rule to seek permit coverage 

when EPA issued the 2003 CAFO rule. 

EPA reasoned in the 2003 CAFO rule, 

and reiterated in the 2006 date change 

rule, that allowing newly regulated 

entities three years to come into 

compliance was consistent with 

Congressional intent, as expressed in 

the 1972 Clean Water Act with respect 

to newly established point sources. 

Moreover, the Agency stated that the 

three year timeframe was necessary for 

States authorized to administer the 

NPDES permit program to provide 

permit coverage for CAFOs that were 

not previously required to be permitted 

and to revise State regulatory programs. 

68 FR 7204. 

In addition to the requirements to 

seek permit coverage, the 2003 CAFO 

rule also required all permitted CAFOs 

to develop and implement NMPs by 

December 31, 2006. EPA believed that 

this date was reasonable given that 

operations would have had a little over 

three and a half years from the issuance 

of the 2003 rule to develop and 

implement an NMP. This timeframe 

allowed States to update their NPDES 

programs and issue permits to reflect 

the NMP requirements of the 2003 

CAFO rule. It also provided flexibility 

for permitting authorities to establish 

permit schedules based on specific 

circumstances, including prioritization 

of nutrient management plan 

development and implementation based 

on site-specific water quality risks and 

the available infrastructure for 

development of NMPs. 

These timing considerations were 

affected by the Waterkeeper decision. 

On February 10, 2006, prior to the 

Agency’s proposed rule responding to 

the Waterkeeper decision, EPA 

promulgated a limited rule to revise 

each of the compliance dates in the 

2003 CAFO rule that were affected by 

the decision (referred to as the ‘‘2006 

date rule’’). 71 FR 6978. Specifically, 

EPA extended the dates for those newly 

defined CAFOs described above to seek 

NPDES permit coverage and the date by 

which all CAFOs must develop and 

implement NMPs. EPA revised these 

dates in order to: (1) Provide the Agency 

sufficient time to take final action on the 

regulatory revisions with respect to the 

Waterkeeper decision; and (2) require 

NMPs to be submitted at the time of the 

permit application, consistent with the 

court’s decision. It was necessary for 

EPA to revise the dates separately from 

addressing the rest of the issues raised 

by the Waterkeeper decision because 

EPA had not completed the proposed 

rule responding to the Waterkeeper 

decision prior to the dates by which 

newly defined CAFOs were required to 

seek permit coverage. 

III. This Proposed Rule 

This notice proposes to amend the 

section detailing when operations 

defined as CAFOs as of April 14, 2003, 

that were not defined as CAFOs prior to 

that date, must seek NPDES permit 

coverage, as well as the section detailing 

when, due to operational changes, 

operations that would not have become 

CAFOs under the prior rule become 

CAFOs under the 2003 rule. Second, 

EPA is proposing to extend the deadline 

by which permitted CAFOs are required 

to develop and implement NMPs. This 

proposed rule would not modify or 

otherwise affect any other existing 

regulatory provisions, nor does it reopen 

the comment period on the proposed 

rule to respond to the Waterkeeper 

decision published on June, 30, 2006. 71 

FR 37744. 

A. Application Deadline for Newly 

Defined CAFOs 

EPA is proposing to extend the date 

by which operations defined as CAFOs 

as of April 14, 2003, that were not 

defined as CAFOs prior to that date, 

must seek NPDES permit coverage, from 

July 31, 2007, to February 27, 2009. EPA 

is also proposing to amend the date by 

which operations that became defined 

as CAFOs after April 14, 2003, or that 

will become CAFOs due to operational 

changes that would not have made them 

a CAFO prior to April 14, 2003, and that 

are not new sources, must seek NPDES 

permit coverage, from July 31, 2007, to 

February 27, 2009. 

This proposed rule would not affect 

the applicable time for seeking permit 

coverage for newly constructed CAFOs 

not subject to new source performance 

standards (NSPS) or for new source 

CAFOs subject to NSPS that discharge 

or propose to discharge, even those in 

categories that were added to the 

definition of a CAFO in the 2003 CAFO 

rule. These CAFOs that discharge or 

propose to discharge are required by 40 

CFR 122.21(a) and 123.23(g)(3)(i) and (4) 

to seek NPDES permit coverage at least 

180 days prior to the time that they 

commence operating, and these 

provisions were unaffected by the 2006 

date rule. 

This proposed rule would not 

supersede State requirements. States 

may choose to require CAFOs to obtain 

NPDES permits in advance of the dates 

set in the federal NPDES regulations, 

pursuant to the authority reserved to 

States under section 510 of the Clean 

Water Act to adopt requirements more 

stringent than those that apply under 

federal law. Further, CAFOs that are 

already permitted, e.g., CAFOs that 

existed prior to the effective date of the 

2003 CAFO rule and as such have been 

required to seek NPDES permit coverage 

even before EPA issued the 2003 CAFO 

rule, continue to be required to maintain 

permit coverage pursuant to section 

122.23(h). 

EPA is also proposing to correct a 

typographical error that was created in 

the 2006 date rule. In that rule, 40 CFR 

122.23(g)(1) as promulgated in the 2003 

CAFO rule (which provides that existing 

operations defined as CAFOs prior to 

April 14, 2003, must seek permit 

coverage by the effective date of the 

2003 rule) was inadvertently replaced 

with 40 CFR 122.23(g)(2) (which 

provides extended compliance dates for 

operations defined as CAFOs as of April 

14, 2003, but were not defined as 

CAFOs prior to that date). Because the 

‘‘(2)’’ was erroneously printed as ‘‘(1)’’, 

section 122.23(g)(1) was overwritten and 

section 122.23(g)(2) was incorrectly left 

unchanged. As a result, the current rule 

contains two provisions applicable to 

‘‘Operations defined as CAFOs as of 

April 14, 2003, who were not defined as 

CAFOs prior to that date’’ with 

conflicting dates. EPA is proposing to 

restore the original section 122.23(g)(1) 

as promulgated in 2003, and to revise 

the date in section 122.23(g)(2) to reflect 

this proposal. 

B. Deadline for Nutrient Management 

Plans 

EPA is proposing to extend the 

deadline by which permitted CAFOs are 

required to develop and implement 

NMPs, from July 31, 2007, to February 

27, 2009. This proposal would revise all 

references to the date by which CAFOs 

must develop and implement NMPs 


ycherry on PROD1PC64 with PROPOSALS
26586 Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Proposed Rules 

currently in Parts 122 and 412. Thus, 

this proposal would revise the deadlines 

established in 40 CFR 122.21(i)(1)(x), 

122.42(e)(1), 412.31(b)(3), and 

412.43(b)(2). 

This proposal would not supersede 

State requirements, nor would it affect 

CAFOs operating under existing permits 

so long as those permits remain in 

effect. If their existing permits require 

development and implementation of an 

NMP, currently permitted CAFOs must 

develop and implement their NMPs in 

accordance with the terms of their 

current permit, or their applicable state 

requirements. This proposed rule also 

would not affect the applicable land 

application limitations and 

requirements for all CAFOs subject to 

the new source performance standards 

under 40 CFR 412.35 and 40 CFR 

412.46. Upon permit coverage, new 

sources must meet all relevant land 

application requirements. 

IV. Rationale for This Action 

At the time of the 2006 date rule, EPA 

believed that July 31, 2007, would allow 

sufficient time for the Agency to 

complete the rulemaking to address the 

Waterkeeper decision. EPA also 

reasoned that the basis for these revised 

dates was generally consistent with the 

approach taken by Congress in the 1972 

Clean Water Act, as explained when 

setting the compliance dates in the 2003 

CAFO rule. 68 FR 7204. EPA anticipated 

that the dates established in the 2006 

date rule provided sufficient time to 

ensure compliance with the NPDES 

regulations within a reasonable 

timeframe consistent with the dates 

established in the 2003 CAFO rule. 71 

FR 6980–81. 

The amount of time needed to revise 

the rule in response to the Waterkeeper 

decision has been greater than EPA 

anticipated at the time it promulgated 

the 2006 date rule. At that time, EPA 

had not yet proposed revisions to the 

CAFO rule and could only surmise what 

the public response to the proposal 

would be. In light of comments received 

and after further consideration of the 

proposed rule, EPA is continuing to 

explore the best method of 

implementing the Waterkeeper decision. 

To avoid any potential conflict with 

existing deadlines that precede the 

publication of the final rule, it is 

appropriate to propose this rulemaking 

to change the dates at issue. 

In comments on the proposed 2006 

date rule, commenters asserted that the 

proposed deadlines would not offer 

CAFOs sufficient time to submit permit 

applications, including NMPs, that will 

comply with the regulatory revisions the 

Agency is planning to address in its 

response to the Waterkeeper decision. 

Other commenters expressed the view 

that EPA needed to take into 

consideration the time necessary for 

States to make conforming revisions to 

State programs following EPA’s 

regulatory revisions. See docket ID 

EPA–HQ–OW–2005–0036. Commenters 

reiterated these concerns in comments 

on the 2006 proposed CAFO rule in 

response to Waterkeeper. See docket ID 

EPA–HQ–OW–2005–0037. This 

proposed rule balances the need to 

address the concerns raised by 

commenters with the interest of having 

the regulatory requirements 

implemented in a timely fashion. In 

EPA’s view, this proposal would also 

provide sufficient time for newly 

defined facilities to review the revised 

duty to apply requirements to determine 

whether they need to seek permit 

coverage. Finally, it would provide time 

for permitting authorities to identify the 

necessary procedures for reviewing 

NMPs and incorporating them into 

general permits. Taking into account the 

time EPA needs to complete the rule in 

response to Waterkeeper, as well as the 

period of time after the final rule is 

promulgated to allow States, the 

regulated community, and other 

stakeholders the opportunity to adjust to 

the new regulatory requirements, EPA 

believes that extending the dates to 

February 27, 2009, is reasonable. 

V. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this proposed 

rule is not a ‘‘significant regulatory 

action’’ and is therefore not subject to 

review under the Executive Order. As 

discussed above, the purpose of this 

proposed rule is solely to address timing 

issues associated with the Agency’s 

response to the Waterkeeper court 

ruling on petitions for review 

challenging portions of the 2003 CAFO 

rule. After considering the economic 

impacts of this proposed rule on small 

entities in accordance with the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.), I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities 

since the effect of the proposal, if 

implemented, is solely to extend certain 

deadlines related to NPDES CAFO 

permitting. Additionally, this proposed 

rule would not affect small 

governments, as the permitting 

authorities are state or federal agencies. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. EPA has determined that this 

proposed rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or the private sector in 

any one year. In addition, this action 

does not significantly or uniquely affect 

small governments. Thus, this proposed 

rule is not subject to sections 202, 203, 

or 205 of the Unfunded Mandates 

Reform Act of 1999 (Pub. L. 104–4). In 

addition, this proposed rule does not 

have Tribal implications as specified in 

Executive Order 13175 (63 FR 67249, 

November 9, 2000) because it will 

neither impose substantial direct 

compliance costs on tribal governments, 

nor preempt Tribal law. This proposed 

rule will not have federalism 

implications, as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999) because it will not impose 

substantial direct compliance costs on 

State or local governments, nor will it 

preempt State law. Thus, the 

requirements of sections 6(b) and 6(c) of 

the Executive Order do not apply to this 

rule. This proposed rule is not subject 

to Executive Order 13045 because it is 

not economically significant as defined 

under E.O. 12866, and because the 

Agency does not have reason to believe 

the environmental health and safety 

risks addressed by this action present a 

disproportionate risk to children. This 

proposed rule is not subject to Executive 

Order 12898 (59 FR 7629 (Feb. 16, 

1994)) which establishes federal 

executive policy on environmental 

justice. EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. This proposed rule is 

not subject to Executive Order 13211, 

‘‘Actions Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001), because it is not a significant 

regulatory action under Executive Order 

12866. This proposed rule does not 

involve technical standards; thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This proposed 

rule does not impose any new 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

However, the Office of Management and 

Budget (OMB) has previously approved 

the information collection requirements 

contained in the existing regulations at 

40 CFR Parts 9, 122, 123, and 412 under 


ycherry on PROD1PC64 with PROPOSALS
Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Proposed Rules 26587 

the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2040–0250. The EPA ICR number for the 

original set of regulations is 1989.02. 

List of Subjects 

40 CFR Part 122 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 412 

Environmental protection, Feedlots, 

Livestock, Waste treatment and 

disposal, Water pollution control. 

Dated: May 3, 2007. 

Stephen L. Johnson, 

Administrator. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency proposes to amend 40 CFR parts 

122 and 412 as follows: 

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

1. The authority citation for part 122 

continues to read as follows: 

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

1251 et seq. 

§ 122.21 [Amended] 

2. In § 122.21 paragraph (i)(1)(x), the 

date ‘‘July 31, 2007’’ is revised read 

‘‘February 27, 2009’’. 

3. Section 122.23 is amended by 

revising paragraphs (g)(1), (g)(2), and 

(g)(3)(iii) to read as follows: 

§ 122.23 Concentrated animal feeding 

operations (applicable to State NPDES 

programs, see § 123.25). 

* * * * * 

(g) * * * 

(1) Operations defined as CAFOs prior 

to April 14, 2003. For operations that are 

defined as CAFOs under regulations 

that are in effect prior to April 14, 2003, 

the owner or operator must have or seek 

to obtain coverage under an NPDES 

permit as of April 14, 2003, and comply 

with all applicable NPDES 

requirements, including the duty to 

maintain permit coverage in accordance 

with paragraph (h) of this section. 

(2) Operations defined as CAFOs as of 

April 14, 2003, that were not defined as 

CAFOs prior to that date. For all 

operations defined as CAFOs as of April 

14, 2003, that were not defined as 

CAFOs prior to that date, the owner or 

operator of the CAFO must seek to 

obtain coverage under an NPDES permit 

by a date specified by the Director, but 

no later than February 27, 2009. 

(3) * * * 

(iii) If an operational change that 

makes the operation a CAFO would not 

have made it a CAFO prior to April 14, 

2003, the operation has until February 

27, 2009, or 90 days after becoming 

defined as a CAFO, whichever is later. 

* * * * * 

§ 122.42 [Amended] 

4. In § 122.42 paragraph (e)(1), the two 

dates ‘‘July 31, 2007’’ are revised read 

‘‘February 27, 2009’’. 

PART 412—CONCENTRATED ANIMAL 

FEEDING OPERATIONS (CAFO) POINT 

SOURCE CATEGORY 

5. The authority citation for part 412 

continues to read as follows: 

Authority: 33 U.S.C. 1311, 1314, 1316, 

1317, 1318, 1342, 1361. 

§ 412.31 [Amended] 

6. In § 412.31 paragraph (b)(3), the 

date ‘‘July 31, 2007’’ is revised to read 

‘‘February 27, 2009’’. 

§ 412.43 [Amended] 

7. In § 412.43 paragraph (b)(2), the 

date ‘‘July 31, 2007’’ is revised to read 

‘‘February 27, 2009’’. 

[FR Doc. E7–9027 Filed 5–9–07; 8:45 am] 

BILLING CODE 6560–50–P 


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