[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Proposed Rules]
[Pages 42679-42682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17772]



40 CFR Parts 9 and 122

[EPA-HQ-OW-2011-0188; FRL-9693-5]
RIN 2040-AF22

National Pollutant Discharge Elimination System (NPDES) 
Concentrated Animal Feeding Operation (CAFO) Reporting Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; Withdrawal.


SUMMARY: On October 21, 2011, the EPA proposed a rulemaking to improve 
and restore water quality by collecting certain information about 
concentrated animal feeding operations (CAFOs). The EPA also solicited 
comments on improving water quality by promoting environmental 
stewardship and compliance rather than collecting facility-specific 
information. The EPA is withdrawing the proposal to collect CAFO 
information by rule. Instead, the EPA, where appropriate, will collect 
CAFO information using existing sources of information, including state 
NPDES programs, other regulations, and other programs at the federal, 
state, and local level. The EPA believes, at this time, it is more 
appropriate to obtain CAFO information by working with federal, state, 
and local partners instead of requiring CAFO information to be 
submitted pursuant to a rule. Today's withdrawal does not preclude the 
Agency from initiating the same or similar rulemaking at a future date.

ADDRESSES: 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., confidential business 
information (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, EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave. NW., Washington, DC 20004. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
federal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Water Docket is (202) 

FOR FURTHER INFORMATION CONTACT: For additional information, contact 

[[Page 42680]]

Mitschele, Water Permits Division, Office of Wastewater Management 
(4203M), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. 
NW., Washington, DC 20460; telephone number: (202) 564-6418; fax 
number: (202) 564-6384; email address: [email protected].

I. General Information
    A. What entities are potentially interested in this action?
    B. Legal Authority
II. Background
III. Summary of Comments Received
IV. The EPA's Considerations Since Proposal
V. The EPA's Rationale for Withdrawal of the Proposed Rule
VI. Impact Analysis
VII. Statutory and Executive Order Reviews

I. General Information

A. What entities are potentially interested in this final action?

    Entities potentially interested in this final action include animal 
feeding operations (AFOs), including AFOs that are CAFOs as defined in 
the National Pollutant Discharge Elimination System (NPDES) regulations 
at 40 CFR 122.23(b)(2), pursuant to section 502(14) of the Clean Water 
Act (CWA). An AFO is a CAFO if it meets the regulatory definition of a 
Large or Medium CAFO (40 CFR 122.23(b)(4) or (6)) or has been 
designated as a CAFO (40 CFR 122.23(c)) by an authorized state or by 
the EPA. The following table provides the size thresholds for Large, 
Medium, and Small CAFOs in each animal sector.

                            Table 1--Summary of CAFO Size Thresholds for All Sectors
             Sector                        Large                    Medium \1\                 Small \2\
Cattle or cow/calf pairs.......  1,000 or more............  300-999..................  Less than 300.
Mature dairy cattle............  700 or more..............  200-699..................  Less than 200.
Veal calves....................  1,000 or more............  300-999..................  Less than 300.
Swine (weighing over 55 pounds)  2,500 or more............  750-2,499................  Less than 750.
Swine (weighing less than 55     10,000 or more...........  3,000-9,999..............  Less than 3,000.
Horses.........................  500 or more..............  150-499..................  Less than 150.
Sheep or lambs.................  10,000 or more...........  3,000-9,999..............  Less than 3,000.
Turkeys........................  55,000 or more...........  16,500-54,999............  Less than 16,500.
Laying hens or broilers (liquid  30,000 or more...........  9,000-29,999.............  Less than 9,000.
 manure handling system).
Chickens other than laying hens  125,000 or more..........  37,500-124,999...........  Less than 37,500.
 (other than a liquid manure
 handling system).
Laying hens (other than a        82,000 or more...........  25,000-81,999............  Less than 25,000.
 liquid manure handling system).
Ducks (other than a liquid       30,000 or more...........  10,000-29,999............  Less than 10,000.
 manure handling system).
Ducks (liquid manure handling    5,000 or more............  1,500-4,999..............  Less than 1,500.
\1\ May be designated or must meet one of the following two criteria to be defined as a Medium CAFO: (1)
  Discharges pollutants through a man-made device; or (2) directly discharges pollutants into waters of the
  United States which pass over, across, or through the facility or otherwise come into direct contact with the
  confined animals. 40 CFR 122.23(b)(6).
\2\ Not a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case basis. 40 CFR

    This table is not intended to be exhaustive. It provides a guide 
for entities likely to be interested in today's action. If you have 
questions regarding this action, consult the person listed in the 

B. Legal Authority

    This action withdraws the proposed NPDES CAFO Reporting Rule. 76 FR 
65431, October 21, 2011. Today's final action is issued pursuant to 
sections 301, 304, 305, 308, 309, 402, 501, and 504 of the CWA (33 
U.S.C. 1311, 1314, 1315, 1318, 1319, 1342, 1361, and 1364).

II. Background

    A core provision of the CWA is the NPDES permit program which 
authorizes and regulates the discharge of pollutants from point sources 
to waters of the United States. 33 U.S.C. 1342. Section 502(14) of the 
CWA includes ``concentrated animal feeding operation'' (CAFO) in the 
definition of ``point source.'' The EPA initially issued national 
effluent guidelines and standards (ELGs) for feedlots on February 14, 
1974, and NPDES CAFO regulations on March 18, 1976. 39 FR 5704, 
February 14, 1974; 41 FR 11458, March 18, 1976.
    In 2008, the EPA issued revised NPDES permitting regulations for 
CAFOs. 73 FR 70418, November 20, 2008. Subsequently, environmental 
groups and industry filed petitions for review of the 2008 rule, which 
were consolidated in the U.S. Court of Appeals for the Fifth Circuit. 
On May 25, 2010, the EPA signed a settlement agreement with the 
environmental petitioners in which the EPA committed to propose a rule, 
pursuant to CWA section 308, 33 U.S.C. 1318, to require all owners or 
operators of CAFOs to submit certain information to the EPA.
    On October 21, 2011, the EPA proposed a rulemaking that contained 
regulatory options for obtaining specified information from CAFOs to 
support the EPA in meeting its water quality protection 
responsibilities under the CWA. The EPA solicited comment on the 
additional items listed in the settlement agreement that the Agency did 
not propose to collect. The EPA also requested comment on three 
alternative approaches to improve water quality including: Collecting 
data from existing sources, requiring states to submit the information 
to the EPA, and expanding the EPA's network of compliance assistance 
and outreach tools. The Federal Register notice contains detailed 
descriptions and a discussion of each option proposed. 76 FR 65431, 
October 21, 2011.
    In the settlement agreement, the EPA committed to take final action 
on the proposal by July 13, 2012. The settlement agreement does not 
commit the EPA to any particular final action. The settlement agreement 
expressly states that nothing in the agreement shall be construed to 
limit or modify the discretion accorded the EPA by the CWA or by 
general principles of administrative law. Today's final action fulfills 
the Agency's commitments per the settlement agreement with the 

III. Summary of Comments Received

    The comment period for the proposed rule ended on January 19, 2012, 
and the EPA received 1,403 comment letters. The commenters on the 
proposed rule included, among others, states, state associations, 
industry organizations, environmental advocacy groups, and individuals. 
The public comments and the EPA's supporting documents are

[[Page 42681]]

available in Docket EPA-HQ-OW-2011-0188.
    Generally, state and state association commenters questioned the 
need for new regulations in light of states already having the 
information the EPA was seeking by virtue of existing CAFO programs at 
the state and local level. Industry commenters opposed the proposed 
rule arguing, among other things, that much of the data had already 
been submitted to the states and the EPA and that the information could 
be collected through means other than a rule. Environmental advocacy 
groups commented in support of the proposed rule and argued that the 
EPA should collect more than the five items of information proposed. 
Individual comments ranged from opposition of the proposed rule to 
support of the proposed rule. Individuals who opposed the proposal 
commented that it would be too burdensome for CAFOs to comply with the 
proposed rule. Individuals who supported the proposal commented that 
the proposed rule is necessary to implement the CAFO program and that 
more information than proposed should be collected from CAFOs.

IV. The EPA's Considerations Since Proposal

    Since the EPA proposed the rulemaking on October 21, 2011, the EPA 
conducted a preliminary evaluation of information publicly available on 
the Internet from all state permitting authorities, expanding on the 
effort the Agency conducted prior to proposal. Prior to proposal, the 
EPA evaluated a subset of existing state programs and identified 
publicly accessible site-specific information for CAFOs. That 
information informed the EPA's decision to develop the voluntary state 
submission process and the alternative approach that relies on existing 
data sources in the proposed NPDES CAFO Reporting Rule. 76 FR 65437, 
October 21, 2011. The docket contains examples of CAFO site-specific 
information that is publicly available on the Internet.
    The EPA's post-proposal evaluation of available information 
included a review of 37 state permitting authority Web sites to 
determine if information about CAFOs is accessible online. The EPA 
notes that although, at present, there are 47 states authorized to 
implement the NPDES program, a number of those states either have no 
CAFOs or are not authorized to implement the CAFO portion of the NPDES 
program. In states where the EPA administers the NPDES program for 
CAFOs, the EPA has information for CAFOs with NPDES permit coverage 
from permit applications or notices of intent. The review of the 37 
state permitting Web sites yielded information on 7,473 operations that 
confine animals. Some of the information includes operations that are 
not federally defined as CAFOs or operations that are required under 
state law to have state non-NPDES permits. The EPA compiled these 
results into a summary report, which can be found in the docket.
    In July 2012, the EPA also established a Memorandum of 
Understanding (MOU) with the Association of the Clean Water 
Administrators (ACWA) that specifically will assist the Agency in 
collecting information about CAFOs. ACWA is an independent, 
nonpartisan, non-profit corporation of state and interstate water 
program managers. The EPA believes cooperation with the states will 
assist the EPA in obtaining needed CAFO information. This collaborative 
effort between the EPA and ACWA will focus on identifying CAFOs and 
assist the EPA in obtaining pertinent information about CAFOs on a 
state-by-state basis.

V. The EPA's Rationale for Withdrawal of the Proposed Rule

    In today's final action, the EPA has chosen not to promulgate a 
regulation. Instead, the EPA is pursuing an approach that relies on a 
range of existing sources of information, other regulations, and other 
programs at the federal, state, and local level to gather basic 
information about CAFOs. The EPA believes at this time it is more 
appropriate to obtain CAFO information from existing sources. Some 
states commented that they have the information proposed to be 
collected by the rule and expressed interest in working with the EPA to 
exchange that information. Since the EPA has established relationships 
with states, as well as the U.S. Department of Agriculture (USDA), U.S. 
Geological Survey (USGS), and other federal partners, the EPA believes 
that working through existing partnerships will yield timely and useful 
results in obtaining much of the needed CAFO information. In developing 
animal agricultural programs since the 2003 CAFO rule, states have 
longstanding relationships with owners and operators of operations that 
confine animals. These relationships will facilitate information 
sharing between relevant stakeholders.
    CAFOs play an important role in water quality planning, due to the 
fact that they are potential sources of nitrogen, phosphorus, 
pathogens, and other pollutants. The EPA continues to believe that the 
gathering and evaluating of information about CAFOs can assist local, 
state, and federal governments, regulated entities, interest groups, 
and the public in making more informed decisions toward meeting the 
objective of the CWA to ``restore and maintain the chemical, physical, 
and biological integrity of the Nation's waters.'' 33 U.S.C. 1251(a). 
EPA explained how information about CAFOs would assist in 
implementation of CWA programs in the proposed rule. 76 FR 65436, 
October 21, 2011. Through the approach outlined in this notice, the EPA 
will seek to collect CAFO information items listed in the proposed 
rule, as well as other information that is available from existing 
resources, which includes continuing to work with USDA, USGS, and other 
agencies to address sources of nutrient pollution.
    Based on the comments received, the EPA believes that it can obtain 
much of the desired CAFO information from federal agencies, states, and 
other existing data sources. The EPA noted in the proposal that the 
existing NPDES permitting program requires CAFOs with NPDES permit 
coverage to submit information as part of the application process as 
well as in annual reports. 76 FR 65439, October 21, 2011. Pursuant to 
40 CFR 122.21(i), information on a CAFO permit application must include 
the following: (1) Name of the owner or operator, (2) facility location 
and mailing address, (3) latitude and longitude of the production area 
(entrance of the production area), (4) a topographic map of the 
geographic area in which the CAFO is located showing the specific 
location of the production area, (5) specific information about the 
number and type of animals, whether in open confinement or housed under 
roof, (6) the type of containment and storage and total capacity for 
manure, litter, or process wastewater, (7) the total number of acres 
under control of the applicant available for land application of 
manure, litter, or process wastewater, (8) estimated amounts of manure, 
litter, and process wastewater generated per year, (9) estimated 
amounts of manure, litter, and process wastewater transferred to other 
persons per year, and (10) a nutrient management plan that at a minimum 
satisfies the requirements specified in 40 CFR 122.42(e), including, 
for all CAFOs subject to the effluent limitations and standards, the 
requirements of 40 CFR 412.4(c), as applicable. Also, pursuant to 40 
CFR 123.24(b)(3), a memorandum of agreement between State Directors and 
the Regional Administrators specifies the frequency and content of 
reports, documents, and other

[[Page 42682]]

information which the state is required to submit to the EPA. States 
are required to allow the EPA to routinely review state records, 
reports, and files relevant to the administration and enforcement of 
the approved program. See also 40 CFR 123.41, 40 CFR 123.43. Because 
these two provisions are part of the NPDES program, the EPA believes, 
at this time, NPDES authorized states have basic information from the 
permit application for at least those CAFOs with NPDES permit coverage, 
and that states will share that information with the EPA. In states 
where the EPA administers the NPDES program for CAFOs, the EPA has 
information for CAFOs with NPDES permit coverage from permit 
applications or notices of intent.
    The EPA believes an efficient approach that does not duplicate 
efforts is the appropriate next step to collecting CAFO information. 
Thus, the EPA believes that before determining whether to issue a rule 
requiring CAFOs to submit information, the Agency should obtain 
existing information from federal agencies, states, local partners, and 
other resources that already collect data. This decision also 
recognizes that many CAFOs have provided their information to some 
governmental entity, although perhaps not to the EPA. While the EPA may 
not be the entity that received the information initially, it is 
reasonable at this time for the EPA to work with its federal, state, 
and local partners to obtain existing information rather than asking 
CAFOs to re-submit information that they have already submitted to 
another governmental entity. Collecting existing information, 
evaluating it, and compiling it in one format will better inform the 
Agency of what additional information may be needed and the best way to 
collect that information, if necessary.
    Continued implementation of the permitting program for CAFOs likely 
will result in improvements in data tracking and availability and 
analysis of CAFO information. For example, some states with established 
programs have comprehensive data on CAFOs. The EPA described existing 
data sources in the proposed CAFO Reporting Rule, of which state 
permitting authorities are just one source. In addition to working with 
the state permitting authorities to exchange information mainly on 
CAFOs with NPDES permit coverage, the EPA may need to use other 
existing sources of data to obtain information about CAFOs without 
NPDES permit coverage. The EPA acknowledges some states will have 
information about CAFOs without NPDES permit coverage through other 
state programs, such as state operating permits. To fill in information 
gaps, the Agency may use existing tools, such as site visits and 
individual information collection requests.
    At this time, the EPA has concluded that working with USDA and 
states, who maintain direct relationships with CAFO owners or operators 
is an effective approach to obtaining CAFO information that will 
minimize the burden on states and CAFOs.

VI. Impact Analysis

    Because the EPA is not promulgating a regulatory reporting 
requirement, there are no compliance costs or impacts associated with 
today's final action.

VII. Statutory and Executive Order Reviews

    Today's action does not establish new regulatory requirements. 
Hence, the requirements of other regulatory statutes and Executive 
Orders that generally apply to rulemakings (e.g., the Unfunded Mandate 
Reform Act) do not apply to this action.

List of Subjects

40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 122

    Administrative practice and procedure, Confidential business 
information, Hazardous substances, Reporting and recordkeeping 
requirements, Water pollution control.

    Dated: July 13, 2012.
Lisa P. Jackson,
[FR Doc. 2012-17772 Filed 7-19-12; 8:45 am]