[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]


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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.

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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 http://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 http://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)
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------

    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]
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