

[Federal Register: July 24, 2007 (Volume 72, Number 141)]
[Rules 
and Regulations]               
[Page 40245-40250]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy07-15]                         

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 412

[EPA-HQ-OW-2005-0036; FRL-8444-8]
RIN 2040-AE92

 
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule extends 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 U.S. Court of 
Appeals for the Second Circuit in Waterkeeper Alliance et al. v. EPA, 
399 F.3d 486 (2nd Cir. 2005). The sole purpose of this rule is to 
address timing issues associated with the Agency's response to the 
Waterkeeper decision.
    This final rule revises 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 extending 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 amending 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 extending the deadline by which 
permitted CAFOs are required to develop and implement NMPs, from July 
31, 2007, to February 27, 2009.

EFFECTIVE DATE: This rule is effective as of July 24, 2007.

ADDRESSES: EPA established a docket for this action under Docket ID No. 
EPA-OW-2005-0036. This is where you can obtain a copy of all materials 
related to this rulemaking, including the comment response document and 
the rule. All documents in the docket are listed on the 
http://www.regulations.gov Web site. 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, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically at http://www.regulations.gov or 

in hard copy at the Water Docket in the EPA Docket Center, EPA West, 
Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Water 
Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: Rebecca Roose, Water Permits Division, 
Office of Wastewater Management (4203M), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 564-0758, e-mail address: roose.rebecca@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information
    Does This Action Apply to Me?
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
    E. Proposed Rule
III. This Final Rule
    A. New Deadlines for Permit Applications and for Permitted CAFOs 
To Develop and Implement Nutrient Management Plans
    1. Application Deadline for Newly Defined CAFOs
    2. Deadline for Nutrient Management Plans
    B. Rationale for This Action
IV. Effective Date of This Action
V. Statutory and Executive Order Reviews

I. General Information

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
----------------------------------------------------------------------------------------------------------------
                                                                                       North         Standard
                                                                                     American       industrial
                  Category                      Examples of regulated entities     industry code  classification
                                                                                      (NAIC)            code
----------------------------------------------------------------------------------------------------------------
Federal, State, and Local Government
Industry...................................  Operators of animal production
                                              operations that meet the
                                              definition of a CAFO.
                                                Beef cattle feedlots (including           112112            0211
                                                 veal).
                                                Beef cattle ranching and farming          112111            0212
                                                Hogs............................           11221            0213

[[Page 40246]]

 
                                                Sheep...........................    11241, 11242            0214
                                                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.

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 parts 122-124. 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 several 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) (hereinafter 
Waterkeeper). Notably, the court vacated the requirement that all CAFOs 
apply for an NPDES permit unless a CAFO demonstrates no potential to 
discharge. The court also remanded the rule for failing to require 
incorporation of the terms of CAFOs' nutrient management plans (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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

C. Status of EPA's Response to the Waterkeeper Decision

    On June 30, 2006, EPA published a proposed rule to revise several 
aspects of the Agency's regulations governing discharges from CAFOs in 
response to the Waterkeeper decision. 71 FR 37744. EPA is briefly 
describing the proposed revisions to the 2003 CAFO here for context 
only. The proposed provisions in response to the Waterkeeper decision 
are beyond the scope of this final rule, and EPA is not addressing 
those provisions in this final rule.
    In summary, EPA proposed to require only owners or operators of 
those CAFOs that discharge or propose to discharge to seek 
authorization to discharge under a permit. Second, EPA proposed to 
require CAFOs seeking authorization to discharge under individual 
permits to submit their NMPs with their permit applications or, under 
general permits, with their notices of intent. 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 
clarifications regarding the applicability of water quality-based 
effluent limitations (WQBELs); new source performance standards for 
swine, poultry, and veal CAFOs; and ``best conventional technology'' 
effluent limitations guidelines for fecal coliform. The June 2006 
proposed rule reflected the dates for compliance as revised on February 
10, 2006 (71 FR 6978), 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 
proposed rule closed on August 29, 2006. EPA will respond to the 
comments received when it takes final action on the June 30, 2006, 
proposed rule. See docket EPA-HQ-OW-2005-0037.

[[Page 40247]]

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 
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 to apply for an NPDES permit. 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, have become 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 authorization to discharge under an NPDES permit when EPA issued 
the 2003 CAFO rule.
    EPA reasoned in the 2003 CAFO rule, and reiterated in the February 
2006 date change rule, that allowing newly regulated entities three 
years to come into compliance was consistent with Congressional intent, 
as expressed in the 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 CAFOs 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 time frame 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, such as prioritization of 
nutrient management plan development and implementation based on site-
specific water quality risks and the available infrastructure for 
development of NMPs.
    The timing of these compliance deadlines was affected by EPA's need 
to revise the CAFO rule as a result of the Second Circuit's decision in 
the Waterkeeper case. On February 10, 2006, prior to the Agency's June 
2006 proposed rule responding to the Waterkeeper decision, EPA 
promulgated a rule to revise each of the compliance dates in the 2003 
CAFO rule that were affected by the decision (hereinafter ``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 final rule responding to the Waterkeeper decision 
prior to the dates by which newly defined CAFOs were required to seek 
permit coverage under the 2003 rule.

E. Proposed Rule

    On May 10, 2007, EPA proposed to further extend only the date by 
which certain operations must seek authorization to discharge under an 
NPDES permit and the date by which all permitted CAFOs must develop and 
implement their NMPs.\2\ EPA proposed to revise these compliance dates 
because EPA would not complete a final rule revising the 2003 CAFO rule 
before the July 31, 2007, deadlines. The public comment period closed 
on June 11, 2007. EPA received a total of 17 comments on the May 10, 
2007, proposed rule.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

III. This Final Rule

A. New Deadlines for Permit Applications and for Permitted CAFOs To 
Develop and Implement Nutrient Management Plans

    This final rule extends certain dates for compliance specified in 
the 2003 CAFO rule and amended by the 2006 date rule. Because EPA will 
not have completed the rulemaking responding to the Waterkeeper 
decision prior to the dates by which newly defined CAFOs must seek 
permit coverage, the Agency is revising these dates to a time that is 
subsequent to the forthcoming CAFO rule revision.
    This rule amends the section detailing when operations defined as 
CAFOs as of April 14, 2003, that were not defined as CAFOs prior to 
that date, and operations that become CAFOs after that date due to 
operational changes that would not have made then a CAFO prior to April 
14, 2003, and that are not new sources must seek NPDES permit coverage. 
Second, EPA is amending the deadline by which permitted CAFOs are 
required to develop and implement NMPs. This final rule does not modify 
or otherwise affect any other existing regulatory provisions, nor does 
it promulgate any regulatory provisions associated with the proposed 
rule in response to the Waterkeeper decision, published on June 30, 
2006. 71 FR 37744.
1. Application Deadline for Newly Defined CAFOs
    EPA is extending 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. This deadline, found at 40 CFR 122.23(g)(2), applies to ``dry'' 
chicken operations, stand-alone immature swine, heifer and calf 
operations, and those animal feeding operations (AFOs) that were 
entitled to the permitting exemption for discharging only in the event 
of a 25-year, 24-hour storm. EPA is also amending 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. 
An example of an operation affected by this deadline, which is found at 
40 CFR 122.23(g)(3)(iii), is an AFO that increases the number of 
animals in confinement to a level that would result in the operation 
becoming defined as a CAFO.

[[Page 40248]]

    This final rule does 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. Those 
CAFOs are required by 40 CFR 122.21(a) and 123.23(g)(3)(i) and (g)(4) 
to seek NPDES permit coverage at least 180 days prior to the time that 
they commence operating.
    This final rule does 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. Further, CAFOs that are already 
permitted, e.g., CAFOs that existed prior to the effective date of the 
2003 CAFO rule and 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 Sec.  122.23(h).
    EPA is also correcting 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, which were not defined as CAFOs 
prior to that date). Because the ``(2)'' was erroneously printed as 
``(1)'', Sec.  122.23(g)(1) was overwritten and Sec.  122.23(g)(2) was 
incorrectly left unchanged. As a result, the rule following the 
February 2006 date extension contained 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 
restoring the original Sec.  122.23(g)(1), as promulgated in 2003, and 
revising the date in Sec.  122.23(g)(2) to reflect the date extension 
finalized by this rule.
2. Deadline for Nutrient Management Plans
    EPA is extending the deadline by which permitted CAFOs are required 
to develop and implement NMPs, from July 31, 2007, to February 27, 
2009. This action revises all references to the date by which CAFOs 
must develop and implement NMPs currently in 40 CFR parts 122 and 412. 
Thus, this rule revises the deadlines found in 40 CFR 122.21(i)(1)(x), 
122.42(e)(1), 412.31(b)(3), and 412.43(b)(2).
    This final rule does not supersede State requirements, nor does 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 rule also does not 
affect the existing 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.

B. Rationale for This Action

    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 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 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. However, 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 revise the CAFO compliance dates effected by this final 
rule.
    Some commenters on the proposed rule raised concerns about the 
proposed further delay and expressed interest in having the regulatory 
requirements implemented in a timely fashion. In EPA's view, the 
deadlines established by this rule are appropriate. Newly defined 
facilities that are required to apply for an NPDES permit will need 
sufficient time to develop their permit applications or notices of 
intent for general permit authorization once EPA has finalized the 
revised rules in response to the Waterkeeper decision. The revised 
deadlines are also appropriate because permitting authorities will need 
time following promulgation of the CAFO regulatory revisions 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 and the comments submitted 
on that proposed rule, 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.
    Several commenters indicated that as a result of the Second 
Circuit's decision vacating the duty to apply provision for CAFOs 
established in the 2003 rule, the deadlines for CAFOs to seek coverage, 
also initially established in that rule, are now unnecessary. These 
commenters suggested that EPA should eliminate the deadlines for CAFOs 
to seek coverage in 40 CFR 122.23(g)(2)-(3), such that only CAFOs that 
discharge or propose to discharge would be required to seek coverage in 
accordance with the timing requirements for all NPDES sources in 40 CFR 
122.21(c). Several other commenters sought clarity of the duty to apply 
provision following the Waterkeeper decision. These comments are beyond 
the scope of this rulemaking. EPA reiterates that it will address the 
various aspects of the court's Waterkeeper decision, including the 
ruling on the ``duty to apply'' issue, in the final rule in response to 
Waterkeeper.
    There were a few commenters who requested that EPA provide greater 
clarity regarding the applicability of the deadline extensions to 
various classifications of CAFOs. As described above, the February 27, 
2009, permit application deadlines revised in this rule do not apply to 
CAFOs that were defined as CAFOs prior to the 2003 rule, nor do the 
deadlines affect new sources subject to new source performance 
standards. The deadlines revised by this rule for developing and 
implementing NMPs apply to all permitted CAFOs, except that new sources 
subject to new source performance standards must develop and implement 
an NMP upon permit coverage.
    Several 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 and, 
accordingly, extend the deadlines to a date two to three years after 
EPA intends to publish the final rule in response to Waterkeeper. While 
EPA agrees that some States may need additional time to modify their 
programs once EPA has

[[Page 40249]]

finalized its regulatory revisions in response to the Waterkeeper 
decision, the Agency does not agree that these concerns justify further 
extension of the compliance dates in this rule. EPA is committed to 
collaborating with States and other interested parties to work through 
the procedural challenges and resolve any difficulties that may arise 
in the implementation of the regulatory revisions. In addition, EPA 
notes that most of the technical provisions of the 2003 CAFO rule 
(e.g., the substantive NMP requirements) were unaffected by the 
Waterkeeper decision, and therefore CAFOs already have the information 
they need to develop NMPs, and do not need to wait for further EPA 
action before doing so.
    Several commenters were opposed to the proposed extension of the 
compliance dates and expressed concern that such an extension would 
reward discharging CAFOs that have not yet complied with permitting 
requirements and that by proposing the extension, EPA is exhibiting a 
lack of urgency to ensure that discharging CAFOs obtain NPDES permit 
coverage. In response, EPA notes that the deadline extension applies 
only to a specific subset of CAFOs, and moreover, nothing in today's 
rule precludes a CAFO from applying for a permit or seeking 
authorization to discharge under a general permit (if available) before 
the February 27, 2009 date. As stated above, this final rule affects 
only certain compliance dates associated with the timing of EPA's final 
rule revisions in response to the Waterkeeper decision. EPA is working 
to promulgate those revisions as expeditiously as possible, while 
giving due attention to the comments received on the June 2006 
proposal. EPA is committed to finalizing the rulemaking process and to 
working with States and agricultural partners to ensure timely 
development of permit applications and NMPs where necessary. Moreover, 
many States are actively implementing the CAFO program and issuing 
permits, and the provisions of this final rule do not supersede 
existing State requirements.
    One comment expressed the view that EPA had made an incorrect 
statement in the preamble to the May 10, 2007, proposed rule regarding 
the ability of authorized States to require CAFOs to seek NPDES permit 
coverage in advance of the dates set in the federal regulations. EPA 
disagrees. The federal regulations establish the outermost limit by 
which certain CAFOs subject to permitting requirements must seek permit 
coverage, leaving open all dates preceding the deadline of February 27, 
2009. If, for example, a State with an approved program were to 
continue to require newly defined CAFOs to seek permit coverage by July 
31, 2007, such a requirement would be consistent with the federal 
requirement for newly defined CAFOs to seek permit coverage no later 
than February 27, 2009.

IV. Effective Date of These Actions

    EPA is making this rule immediately effective upon the date of 
publication. The immediate effective date for this action is authorized 
under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions 
may become effective less than 30 days after publication if the rule 
``grants or recognizes an exemption or relieves a restriction'' and 
section 553(d)(3) which allows an effective date less than 30 days 
after publication ``as otherwise provided by the agency for good cause 
found and published with the rule.''
    EPA finds that there is good cause to make the rule effective 
immediately. The compliance deadlines being revised by this final rule 
require some CAFOs to seek NPDES permit coverage and prepare and 
implement nutrient management plans by July 31, 2007, before EPA 
regulations will be in place to respond to the Waterkeeper decision. 
Making this rule immediately effective is consistent with the purpose 
of the good cause exemption which is to provide reasonable time for 
affected parties to comply. A delayed effective date is not necessary 
because affected parties do not have to take any action to comply with 
this rule which simply extends deadlines for seeking NPDES permit 
coverage and developing and implementing nutrient management plans. In 
addition, consistent with section 553(d)(3), an immediate effective 
date is justified because this rule relieves certain CAFOs of 
obligations which would otherwise apply to them, to seek NPDES permit 
coverage and develop and implement nutrient management plans by July 
31, 2007.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 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 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 adverse impact on a substantial 
number of small entities since the effect of the final rule is solely 
to extend certain deadlines related to NPDES CAFO permitting. 
Additionally, this rule does not affect small governments, as the 
permitting authorities are State or Federal agencies.
    EPA has determined that this 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 final 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 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 
final rule does not have federalism implications, as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999) because it does 
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 final rule is not subject to Executive Order 13045 because it 
is not economically significant as defined under Executive Order 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 final rule is not subject to 
Executive Order 12898 (59 FR 7629 (February 16, 1994)), which 
establishes federal executive policy on environmental justice. 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 does not affect the level of protection provided 
to human health or the environment. This final 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 final 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.

[[Page 40250]]

272 note) do not apply. This final rule does not impose any new 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. section 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 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.
    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. 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2) and will be effective on July 24, 2007.

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: July 18, 2007.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, the Environmental Protection 
Agency amends 40 CFR parts 122 and 412 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.


Sec.  122.21  [Amended]

0
2. In Sec.  122.21 paragraph (i)(1)(x), the date ``July 31, 2007'' is 
revised to read ``February 27, 2009.''

0
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]

0
4. In Sec.  122.42 paragraph (e)(1), the two dates ``July 31, 2007'' 
are revised to read ``February 27, 2009.''

PART 412--CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFO) POINT 
SOURCE CATEGORY

0
1. 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]

0
2. In Sec.  412.31 paragraph (b)(3), the date ``July 31, 2007'' is 
revised to read ``February 27, 2009.''


Sec.  412.43  [Amended]

0
3. In Sec.  412.43 paragraph (b)(2), the date ``July 31, 2007'' is 
revised to read ``February 27, 2009.''

[FR Doc. E7-14258 Filed 7-23-07; 8:45 am]

BILLING CODE 6560-50-P
