[Federal Register Volume 74, Number 12 (Wednesday, January 21, 2009)]
[Notices]
[Pages 3592-3595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1200]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8765-3]


Draft National Pollutant Discharge Elimination System (NPDES) 
General Permit for Discharges From Horse, Cattle and Dairy Concentrated 
Animal Feeding Operations (CAFOs) in New Mexico (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 New Mexico, except those discharges on Indian 
Country. 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, Subparts A (Horses) and C (Dairy Cows and Cattle Other than 
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 the types of 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.

DATES: Comments must be submitted in writing to EPA on or before 
February 20, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. NMG010000 
by one of the following methods:
     E-mail: [email protected].
     Mail: Ms. Diane Smith, Environmental Protection Agency, 
Water Quality Protection Division (6WQ-NP), 1445 Ross Ave., Suite 1200, 
Dallas, TX 75202.
     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.
    Instructions: Direct your comments to Docket ID No. NMG010000. 
EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online, 
including any personal information provided, unless the comment 
includes information claimed to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Do not submit information that you consider to be CBI or otherwise 
protected through e-mail. If you send an e-mail comment directly to EPA 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and may be made 
available on the Internet. If you submit an electronic comment, EPA 
recommends that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If EPA 
cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in docket index. 
Although listed in the index, some information is not publicly 
available, e.g., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available either electronically or in 
hard copy from Ms. Diane Smith at the address above. The Docket 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 Docket or to obtain copies of 
available documents, please contact Ms. Diane Smith at 214-665-2145 or 
[email protected].

FOR FURTHER 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: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Today's CAFO general permit would potentially apply to the 
following activities:

[[Page 3593]]



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                                                                                                 North American
                                                                                                    Industry
                  Category                             Examples of affected entities             Classification
                                                                                                 System (NAICS)
                                                                                                      codes
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Industry...................................   Operators of concentrated animal feeding operations subject to the
                                                      following national effluent limitation guidelines:
                                            --------------------------------------------------------------------
                                             Horses and Sheep (40 CFR Part 412, Subpart A.....  ................
                                             Dairy Cows and Cattle Other than Veal Calves (40               1121
                                              CFR Part 412, Subpart C).
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    EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding entities likely to be 
regulated by this action. This table lists the types of activities that 
EPA is now aware of that could potentially be affected by this action. 
Other types of entities not listed in the table could also be affected. 
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.

B. How Do I Obtain a Copy of the Proposed Permit?

    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 above.

C. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
via e-mail. Clearly mark the part or all of the information that you 
claim to be CBI. For CBI information in a disk or CD-ROM that you mail 
to EPA, mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

D. 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.

E. Permit Issuance

    After the close of the public comment period, EPA will develop a 
response to comments document and issue a permit. This permit will not 
be issued until after all public comments have been considered and 
appropriate changes made to the permit. EPA's response to public 
comments received will be included in the docket as part of the permit 
decisions. Once the permit becomes effective, operators may seek 
authorization to discharge by filing a Notice of Intent (NOI) to be 
covered under the new CAFO permit in accordance with the terms and 
conditions of the permit.

II. Background of Permit Proposal

A. Statutory and Regulatory History

    The Clean Water Act (``CWA'') establishes a comprehensive program 
``to restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.'' 33 U.S.C. 1251(a). The CWA also 
includes the objective of attaining ``water quality which provides for 
the protection and propagation of fish, shellfish and wildlife.'' 33 
U.S.C. 1251(a)(2)). To achieve these goals, the CWA requires EPA to 
control the discharges through the issuance of National Pollutant 
Discharge Elimination System (``NPDES'') permits.
    Section 301(a) of the Clean Water Act (CWA), 33 U.S.C. 1311(a), 
prohibits the discharge of pollutants to waters of the U.S. in the 
absence of authorizing permits, including NPDES permits. The CWA 
section 402, 33 U.S.C. 1342, authorizes EPA to issue NPDES permits 
allowing such discharges on condition that they in part will comply 
with requirements implementing CWA sections 301, 304, and 401 [33 
U.S.C. 1311, 1314, and 1341].
    In February 2003, EPA issued revised Clean Water Act (CWA) 
permitting requirements and effluent limitations for CAFOs. The revised 
regulations expanded the number of CAFOs required to seek NPDES permit 
coverage and added requirements applicable to land application of 
manure by CAFOs. In February 2005, the Second Circuit Court of Appeals 
issued its decision in Waterkeeper Alliance et al. v. EPA regarding 
legal challenges to the 2003

[[Page 3594]]

rule. Among other things, the court directed EPA to remove the 
requirement for all CAFOs to apply for NPDES permits, and to add 
requirements for Nutrient Management Plans (NMPs) to be submitted by 
CAFOs with their permit applications, reviewed by permitting 
authorities and the public, and the NMP terms incorporated into 
permits. EPA published a final regulation in the Federal Register on 
Novermber 20, 2008, revising national effluent limitation guidelines 
for discharges from CAFOs. See 73 FR 70,418. Today's proposed permit 
reflects these revised guidelines and other applicable NPDES permitting 
requirements at 40 CFR parts 122 and 125.

B. Summary of Permit Proposal

    EPA Region 6 is proposing to reissue General NPDES Permit No. 
NMG010000 for discharges from concentrated animal feeding operations 
(CAFOs) in New Mexico (except Indian Country). 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 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.)

C. Significant Changes From Previous CAFO General Permit

    This proposed permit implements revised regulatory requirements 
from the 2003 and 2008 revisions to the regulations. The permit adds 
new requirements relating to 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.
    Under the CWA, the Permitting Authority may issue general permits 
to regulate numerous facilities which have similar discharges and are 
subject to the same conditions and limitations within a specified 
geographic area (i.e., state or watershed) [40 CFR 122.28]. Using 
general permits conserves resources and reduces the paperwork burden 
associated with obtaining discharge authorization for the regulated 
community.

D. Geographic Coverage

    The proposed permit would authorize discharges in the state of New 
Mexico, except those discharges that occur on Indian Country. CAFOs 
discharging on Indian Country would be required to apply for an 
individual permit.

III. Compliance With the Regulatory Flexibility Act

A. 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 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

[[Page 3595]]

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).

B. Application of RFA Framework to Proposed Issuance of CAFO General 
Permit for New Mexico (Except Indian Country)

    EPA has determined, consistent with the discussion in section IV.B 
above, that the proposed issuance of today's proposed permit would not 
affect a substantial number of small entities. Although general permits 
are considered to be adjudications and not rules and therefore not 
legally subject to the regulatory flexibility act, the Agency as a 
matter of policy is evaluating on an individual basis whether or not a 
specific general permit would have a significant economic impact on a 
substantial number of small entities. Upon considering EPA's current 
guidance, entitled Final Guidance for EPA Rulewriters: Regulatory 
Flexibility Act as Amended by the Small Business Regulatory Enforcement 
and Fairness Act, EPA concludes that since this general permit affects 
less than 100 small entities at any one time, EPA believes that it does 
not have a significant economic impact on a substantial number of small 
entities.

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

    Dated: January 13, 2009.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
 [FR Doc. E9-1200 Filed 1-16-09; 8:45 am]
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