[Federal Register Volume 74, Number 56 (Wednesday, March 25, 2009)]
[Notices]
[Pages 12849-12851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6673]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8780-6]


Draft National Pollutant Discharge Elimination System (NPDES) 
General Permit for Discharges From Horse, Cattle and Dairy Cows, Swine, 
Poultry, and Veal Calf Concentrated Animal Feeding Operations (CAFOs) 
in Oklahoma (Except Indian Country)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed permit issuance.

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SUMMARY: EPA Region 6 Water Quality Protection Division, today is 
proposing for public comment the issuance of a National Pollutant 
Discharge Elimination System general permit for discharges from 
eligible owners/operators of existing concentrated animal feeding 
operations (CAFOs), in Oklahoma, except those discharges on Indian 
Country. CAFOs discharging on Indian Country would be required to apply 
for an individual permit.
    All currently operating animal feeding operations that are defined 
as CAFOs or designated as CAFOs by the permitting authority (See Part 
VII Definitions, ``CAFOs'') and that are subject to 40 CFR Part 412, 
Subpart A (Horses), Subpart C (Dairy Cows and Cattle Other than Veal 
Calves), and Subpart D (Swine, Poultry, and Veal Calves) are eligible 
for coverage under this permit. Hereinafter, this NPDES general permit 
will be referred to as ``permit'' or ``CAFO permit'' or ``CAFO general 
permit.'' Eligible CAFOs may apply for authorization under the terms 
and conditions of this permit, by submitting a notice of intent (NOI) 
to be covered by this permit. This permit covers animal feeding 
operations listed above which meet the definition of a CAFO and 
discharge or propose to discharge pollutants to waters of the United 
States. A CAFO proposes to discharge if it is designed, constructed, 
operated, or maintained such that a discharge will occur.
    To determine whether your facility is regulated by this action, you 
should carefully examine the definition of ``concentrated animal 
feeding operation'' in existing EPA regulations at 40 CFR 122.23. (also 
found in Part VII of the draft permit). If you have questions regarding 
the applicability of this action to a particular entity, consult the 
person listed for technical information in the preceding FOR FURTHER 
INFORMATION CONTACT section.
    This permit was originally issued in the Federal Register at 58 FR 
7610 with an effective date of March 10, 1993, and an expiration date 
of March 10, 1998. Applicable requirements from that 1993 permit are 
continued in the proposed

[[Page 12850]]

permit. The proposed permit adds additional requirements contained in 
revised CAFO regulations at 40 CFR 122 and 412 which were published in 
the Federal Register at 73 FR 70,418 (November 20, 2008).
    The permit adds new requirements relating to Nutrient Management 
Plans (NMPs) for permitted CAFOs. CAFO operators were required to 
develop and implement NMPs under the 2003 rule; the 2008 rule requires 
CAFOs to submit the NMPs along with their notice of intent (NOI). EPA 
Region 6 as the permitting authority will review the NMPs submitted 
along with the NOIs and will also establish the terms of the NMP that 
are enforceable elements of the permit. The region will provide the 
public with an opportunity for meaningful review and comment on the 
NMPs and the terms of the NMPs will be incorporated into the permit.

DATES: Comments must be submitted in writing to EPA on or before April 
24, 2009.
    Proposed Documents: The proposed general permit and fact sheet 
which sets forth principal facts and the significant factual, legal, 
and policy questions considered in the development of the proposed 
general permit, may both be obtained via the Internet at http://www.epa.gov/region6/water/npdes/cafo/index.htm. To obtain hard copies 
of these documents or any other information in the administrative 
record, please contact Ms. Diane Smith using the contact information 
provided below.

How Do I Comment on This Proposal?

    Comment Submittals: Submit your comments, by one of the following 
methods:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#f487999d809cda909d959a91b4918495da939b82"><span class="__cf_email__" data-cfemail="f0839d998498de9499919e95b0958091de979f86">[email protected]</span></a>.
    <bullet> Mail: Ms. Diane Smith, Environmental Protection Agency, 
Water Quality Protection Division (6WQ-NP), 1445 Ross Ave., Suite 1200, 
Dallas, TX 75202.
    <bullet> Hand Delivery: EPA Region 6, 7th Floor Reception Desk, 
1445 Ross Ave., Suite 1200, Dallas, TX 75202. Such deliveries are only 
accepted during normal business hours.
    For Technical Information Contact: Scott Stine, NPDES Permits and 
TMDL Branch (6WQ-PP), Environmental Protection Agency, 1445 Ross Ave., 
Suite 1200, Dallas, TX 75202; telephone number: (214) 665-7182; fax 
number: (214) 665-2191; e-mail address: <a href="/cdn-cgi/l/email-protection#b4c7c0dddad19ac7d7dbc0c0f4d1c4d59ad3dbc2"><span class="__cf_email__" data-cfemail="a7d4d3cec9c289d4c4c8d3d3e7c2d7c689c0c8d1">[email protected]</span></a>.
    Administrative Record: All documents and references used in the 
development of this permit are part of the Administrative Record for 
this permit. 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 materials are available either electronically or in hard copy 
from Ms. Diane Smith at the address above. The Administrative Record 
may also be viewed at the EPA Region 6 Offices from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. For more 
information on scheduling a time to view the Record or to obtain copies 
of available documents, please contact Ms. Diane Smith at 214-665-2145 
or <a href="/cdn-cgi/l/email-protection#1467797d607c3a707d757a71547164753a737b62"><span class="__cf_email__" data-cfemail="12617f7b667a3c767b737c77527762733c757d64">[email protected]</span></a>.

Public Hearings

    EPA has not scheduled any public hearings to receive public comment 
concerning the proposed permit. All persons will continue to have the 
right to provide written comments during the public comment period. 
However, interested persons may request a public hearing pursuant to 40 
CFR 124.12 concerning the proposed permit. Requests for a public 
hearing must be sent or delivered in writing to the same address as 
provided above for public comments prior to the close of the comment 
period. Requests for a public hearing must state the nature of the 
issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12, 
EPA shall hold a public hearing if it finds, on the basis of requests, 
a significant degree of public interest in a public hearing on the 
proposed permit. If EPA decides to hold a public hearing, a public 
notice of the date, time and place of the hearing will be made at least 
30 days prior to the hearing. Any person may provide written or oral 
statements and data pertaining to the proposed permit at the public 
hearing.

III. Compliance With the Regulatory Flexibility Act

EPA's Approach to Compliance With the Regulatory Flexibility Act for 
General Permits

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    The legal question of whether a general permit (as opposed to an 
individual permit) qualifies as a ``rule'' or as an ``adjudication'' 
under the Administrative Procedure Act (APA) has been the subject of 
periodic litigation. In a recent case, the court held that the CWA 
Section 404 Nationwide general permit before the court did qualify as a 
``rule'' and therefore that the issuance of that general permit needed 
to comply with the applicable legal requirements for the issuance of a 
``rule.'' National Ass'n of Home Builders v. U.S. Army Corps of 
Engineers, 417 F.3d 1272, 1284-85 (DC Cir.2005) (Army Corps general 
permits under Section 404 of the Clean Water Act are rules under the 
APA and the Regulatory Flexibility Act; ``Each NWP [nationwide permit] 
easily fits within the APA's definition `rule.' * * * As such, each NWP 
constitutes a rule * * *'').
    As EPA stated in 1998, ``the Agency recognizes that the question of 
the applicability of the APA, and thus the RFA, to the issuance of a 
general permit is a difficult one, given the fact that a large number 
of dischargers may choose to use the general permit.'' 63 FR 36489, 
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES 
general permitting actions and related statements in the Federal 
Register or elsewhere,'' and stated that ``[t]his review suggests that 
the Agency has generally treated NPDES general permits effectively as 
rules, though at times it has given contrary indications as to whether 
these actions are rules or permits.'' Id. at 36496. Based on EPA's 
further legal analysis of the issue, the Agency ``concluded, as set 
forth in the proposal, that NPDES general permits are permits [i.e., 
adjudications] under the APA and thus not subject to APA rulemaking 
requirements or the RFA.'' Id. Accordingly, the Agency stated that 
``the APA's rulemaking requirements are inapplicable to issuance of 
such permits,'' and thus ``NPDES permitting is not subject to the 
requirement to publish a general notice of proposed rulemaking under 
the APA or any other law * * * [and] it is not subject to the RFA.'' 
Id. at 36497.
    However, the Agency went on to explain that, even though EPA had 
concluded that it was not legally required to do so, the Agency would 
voluntarily perform the RFA's small-entity impact analysis. Id. EPA 
explained the strong public interest in the Agency following the RFA's 
requirements on a voluntary basis: ``[The notice and comment] process 
also provides an opportunity for EPA to consider the potential impact 
of general

[[Page 12851]]

permit terms on small entities and how to craft the permit to avoid any 
undue burden on small entities.'' Id. Accordingly, with respect to the 
NPDES permit that EPA was addressing in that Federal Register notice, 
EPA stated that ``the Agency has considered and addressed the potential 
impact of the general permit on small entities in a manner that would 
meet the requirements of the RFA if it applied.'' Id.
    Subsequent to EPA's conclusion in 1998 that general permits are 
adjudications rather than rules, as noted above, the DC Circuit 
recently held that nationwide general permits under section 404 are 
``rules'' rather than ``adjudications.'' Thus, this legal question 
remains ``a difficult one'' (supra). However, EPA continues to believe 
that there is a strong public policy interest in EPA applying the RFA's 
framework and requirements to the Agency's evaluation and consideration 
of the nature and extent of any economic impacts that a CWA general 
permit could have on small entities (e.g., small businesses). In this 
regard, EPA believes that the Agency's evaluation of the potential 
economic impact that a general permit would have on small entities, 
consistent with the RFA framework discussed below, is relevant to, and 
an essential component of, the Agency's assessment of whether a CWA 
general permit would place requirements on dischargers that are 
appropriate and reasonable. Furthermore, EPA believes that the RFA's 
framework and requirements provide the Agency with the best approach 
for the Agency's evaluation of the economic impact of general permits 
on small entities. While using the RFA framework to inform its 
assessment of whether permit requirements are appropriate and 
reasonable, EPA will also continue to ensure that all permits satisfy 
the requirements of the Clean Water Act. Accordingly, EPA has committed 
to operating in accordance with the RFA's framework and requirements 
during the Agency's issuance of CWA general permits (in other words, 
the Agency has committed that it will apply the RFA in its issuance of 
general permits as if those permits do qualify as ``rules'' that are 
subject to the RFA).

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

    Dated: March 4, 2009.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
[FR Doc. E9-6673 Filed 3-24-09; 8:45 am]
BILLING CODE 6560-50-P


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