[Federal Register Volume 72, Number 90 (Thursday, May 10, 2007)]
[Proposed Rules]
[Pages 26582-26587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9027]


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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.

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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: <a href="/cdn-cgi/l/email-protection#dab5adf7beb5b9b1bfae9abfaabbf4bdb5ac"><span class="__cf_email__" data-cfemail="9ef1e9b3faf1fdf5fbeadefbeeffb0f9f1e8">[email protected]</span></a>, 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

[[Page 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 e-mail 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: <a href="/cdn-cgi/l/email-protection#24564b4b57410a56414641474745644154450a434b52"><span class="__cf_email__" data-cfemail="81f3eeeef2e4aff3e4e3e4e2e2e0c1e4f1e0afe6eef7">[email protected]</span></a>.

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
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                                                                                                    Standard
                                                                              North American       industrial
                Category                   Examples of regulated entities     industry code      classification
                                                                                  (NAIC)              code
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Federal, State, and Local Government:
Industry................................  Operators of animal production
                                           operations that meet the
                                           definition of a CAFO:
                                            Beef cattle feedlots                       112112               0211
                                             (including veal).
                                            Beef cattle ranching and                   112111               0212
                                             farming.
                                            Hogs..........................              11221               0213
                                            Sheep.........................             11241,               0214
                                                                                        11242
                                            General livestock except dairy              11299               0219
                                             and poultry.
                                            Dairy farms...................              11212               0241
                                            Broilers, fryers, and roaster               11232               0251
                                             chickens.
                                            Chicken eggs..................              11231               0252
                                            Turkey and turkey eggs........              11233               0253
                                            Poultry hatcheries............              11234               0254
                                            Poultry and eggs..............              11239               0259
                                            Ducks.........................             112390               0259
                                            Horses and other equines......              11292               0272
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility may be regulated under this rulemaking, you should 
carefully examine the applicability criteria in 40 CFR 122.23. If you 
have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

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

[[Page 26584]]

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 
technology-based and water quality-based effluent limitations that are 
imposed through NPDES permits to control the discharge of pollutants 
from point sources. CWA Section 301(a) and (b).

B. History of Actions To Address CAFOs Under the NPDES Permitting 
Program

    EPA's regulation of wastewater and manure from CAFOs dates from the 
1970s. EPA initially issued national effluent limitations guidelines 
and standards for feedlots on February 14, 1974, (39 FR 5704) and NPDES 
CAFO regulations on March 18, 1976 (41 FR 11458).
    In February 2003, EPA revised these regulations. 68 FR 7176 (the 
``2003 CAFO rule''). The 2003 CAFO rule required owners or operators of 
all CAFOs\1\ to seek coverage under an NPDES permit, unless they 
demonstrated no potential to discharge. CAFO industry organizations 
(American Farm Bureau Federation, National Pork Producers Council, 
National Chicken Council, and National Turkey Federation (NTF), 
although NTF later withdrew its petition) and 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.
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    \1\ To improve readability in this preamble, reference is made 
to ``CAFOs'' as well as ``owners and operators of CAFOs.'' No change 
in meaning is intended.
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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.
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    \2\ Note that in response to the Waterkeeper decision, EPA 
proposed a variation to the ``develop and implement'' language of 
the June 2006 proposal which stated that a CAFO operator must submit 
an NMP with its permit application or NOI and that it must be 
implemented upon permit coverage. 71 FR 37744.
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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

[[Page 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

[[Page 26586]]

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

[[Page 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.


Sec.  122.21  [Amended]

    2. In Sec.  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:


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

* * * * *
    (g) * * *
    (1) Operations defined as CAFOs prior to April 14, 2003. For 
operations that are defined as CAFOs under regulations that are in 
effect prior to April 14, 2003, the owner or operator must have or seek 
to obtain coverage under an NPDES permit as of April 14, 2003, and 
comply with all applicable NPDES requirements, including the duty to 
maintain permit coverage in accordance with paragraph (h) of this 
section.
    (2) Operations defined as CAFOs as of April 14, 2003, that were not 
defined as CAFOs prior to that date. For all operations defined as 
CAFOs as of April 14, 2003, that were not defined as CAFOs prior to 
that date, the owner or operator of the CAFO must seek to obtain 
coverage under an NPDES permit by a date specified by the Director, but 
no later than February 27, 2009.
    (3) * * *
    (iii) If an operational change that makes the operation a CAFO 
would not have made it a CAFO prior to April 14, 2003, the operation 
has until February 27, 2009, or 90 days after becoming defined as a 
CAFO, whichever is later.
* * * * *


Sec.  122.42  [Amended]

    4. In Sec.  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.


Sec.  412.31  [Amended]

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


Sec.  412.43  [Amended]

    7. In Sec.  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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