Federal Register, Volume 63 Issue 123 (Friday, June 26, 1998)

[Federal Register Volume 63, Number 123 (Friday, June 26, 1998)]
[Notices]
[Pages 34874-34885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16943]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6116-3]

National Pollutant Discharge Elimination System (NPDES) General
Permits for Discharges From Concentrated Animal Feeding Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed reissuance of NPDES general permits.

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SUMMARY: Proposed reissuance of NPDES general permits for discharges
from concentrated animal feeding operations (CAFOs) in (1) EPA Region 6
States of New Mexico (NMG800000), Oklahoma (OKG800000), and Texas
(TXG800000); (2) all Indian Country Lands in Oklahoma, Texas, and New
Mexico without certification authority; and (3) the following Indian
Pueblos in New Mexico that have certification authority: Pueblo of
Isleta, Pueblo of Nambe, Pueblo of Picuris, Pueblo of Pojoaque, Pueblo
of Sandia, Pueblo of San Juan, Pueblo of Santa Clara, and Pueblo of
Tesuque.
Also proposed in this action are watershed-specific NPDES general
permits for CAFOs located in watersheds that have been impaired by
CAFO-related activities in EPA Region 6 States of (1) New Mexico
(NMG810000), Oklahoma (OKG810000), and Texas (TXG810000); (2) all
Indian Country lands in Oklahoma, Texas, and New Mexico without
certification authority; and (3) the following Indian Pueblos in New
Mexico that have certification authority: Pueblo of Isleta, Pueblo of
Nambe, Pueblo of Picuris, Pueblo of Pojoaque, Pueblo of Sandia, Pueblo
of San Juan, Pueblo of Santa Clara, and Pueblo of Tesuque.
EPA Region 6 today proposes to (1) reissue NPDES general permits
authorizing limited discharges from CAFOs in New Mexico, Oklahoma, and
Texas; and (2) issue new NPDES general permits for all CAFOs within
these States that are located in watersheds impaired by CAFO-related
activities. The permits' requirements are based on NPDES regulations
(40 CFR Parts 122 and 412). As proposed, the general permits prohibit
discharges of process wastewater pollutants from CAFOs to waters of the
United States except during catastrophic or chronic rainfall events.
When effective, these permits will replace the general permits
published at 58 FR 7610 (February 8, 1993). The requirements of the
watershed-specific permits are designed to protect nutrient-impaired
watersheds against further degradation and nutrient pollution resulting
from CAFO-related activities, such as manure and wastewater land
application activities and offsite land disposal of manure at rates
that exceed crop agronomic requirements.

DATES: Written comments on this proposal may be submitted to EPA Region
6 until August 25, 1998.

ADDRESSES: Comments to EPA should be mailed to Ms. Wilma Turner (6WQ-
CA), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. The
public record is located at the EPA Region 6 office, and is available
upon request. Requests for copies of the public record should be
addressed to Ms. Wilma Turner at the address provided above. A
reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: For further information on the
proposed draft permits or to request for a complete copy of the entire
fact sheet and draft general permits, contact Ms. Wilma Turner at the
address provided above or by telephone at (214) 665-7513. Also, the
draft permits and the fact sheet can be obtained from the Internet at
the following website address: www.epa.gov/region6/6wq/npdes/
publicnotice.htm.

SUPPLEMENTARY INFORMATION:

Public Hearings

Informal Public Meetings and formal Public Hearings will be held in
New Mexico, Oklahoma, and Texas to provide information on the draft
permit conditions and to allow for public comment on the draft permits.
Informal public meetings with question and answer sessions are
scheduled, prior to each of the formal Public Hearings, to allow the
public to make informal statements and comments before the formal
Public Hearing sessions begin. The schedule for informal meetings and
formal public hearings are as follows:
Monday August 3, 1998: Informal Public Meeting with question and
answer session from 9:00 a.m. to 11:00 a.m., followed by a formal
Public Hearing from 1:30 p.m. to 4:30 p.m., in the Oklahoma/Texas Rooms
on the 12th floor of the EPA office, 1445 Ross Avenue, Dallas, Texas
75202-2733.
Thursday August 13, 1998: Informal Public Meeting with question and
answer session from 3:00 p.m. to 5:00

[[Page 34875]]

p.m., followed by a formal Public Hearing from 7:00 p.m. to 10:00 p.m.,
in the Cherokee Room of the Clarion Hotel and Conference Center, 4345
N. Lincoln Blvd., Oklahoma City, OK 73105.
Thursday August 20, 1998: Informal Public Meeting with question and
answer session from 3:00 p.m. to 5:00 p.m., followed by a formal Public
Hearing from 7:00 p.m. to 10:00 p.m., in the Corbett Center Auditorium,
Corbett Center Student Union, New Mexico State University Campus, South
Jordan Street, P.O. Box 30004, Las Cruces, New Mexico 88003.
Information in this Notice is organized as follows:
I. General Statutory and Regulatory Background
II. Permit Coverage
III. Permit Conditions
IV. Best Management Practices
V. Discharge Monitoring and Reporting Requirements
VI. Pollution Prevention Plan Requirements
VII. Other Permit Requirements
VIII. Economic Impact
IX. Compliance With Other Federal Regulations

I. General Statutory and Regulatory Background

Section 301(a) of the Clean Water Act (CWA), 33 U.S.C. 1311(a),
prohibits the discharge of pollutants to waters of the United States in
the absence of authorizing permits, including NPDES permits. CWA 402,
33 USC 1342, authorizes EPA (or EPA-approved states) to issue NPDES
permits allowing such discharges on condition they will comply with
requirements implementing CWA sections 301, 304, and 401 (33 U.S.C.
1311, 1314 and 1341). Among those requirements are effluent limitations
reflecting levels of technological capability, water quality standards,
and other more stringent requirements states may adopt under CWA 510,
33 U.S.C. 1370. Violation of a condition contained in an NPDES permit,
whether an individual or general permit, is a violation of the Act and
subjects the owner or operator of the permitted facility to the
penalties specified in section 309 of the Act.
Most NPDES permits EPA issues are individual permits; i.e., they
apply only to one facility and authorize discharges of pollutants only
from that facility. EPA may also use ``general permits'' to regulate
numerous facilities which have similar discharges and are subject to
the same conditions and limitations within a geographic area. See 40
CFR 122.28; NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). Using
general permits conserves EPA resources and reduces the paperwork
burden associated with obtaining discharge authorization for the
regulated community. In issuing general permits, EPA does not use the
procedural rules (40 CFR Part 124) it uses in individual permitting
actions; instead, it uses procedures that are more commonly associated
with rulemaking, i.e., publication in the Federal Register. General
permits are not rules, however, and are subject to the same substantive
requirements that apply to individual NPDES permits, many of which are
found in 40 CFR Part 122. The draft CAFO general permits proposed here
are general permits.
To control discharges of ``conventional pollutants'', such as pH,
biochemical oxygen demand (BOD), oil and grease, total suspended solids
(TSS) and fecal coliform, CWA 301(b)(1)(E) requires that NPDES permits
include effluent limitations based on ``best conventional pollutant
control technology'' (BCT). To regulate nonconventional and toxic
pollutants, CWA section 301(b)(2)(A), (C), and (D) require that NPDES
permits include effluent limitations based on ``best available
technology economically achievable'' (BAT), a standard which generally
represents the best performing existing technology in an industrial
category or sub-category. BAT and BCT effluent limitations may never be
less stringent than corresponding effluent limitations based on ``best
practicable control technology currently available'' (BPT), a standard
generally applicable to similar discharges prior to March 31, 1989,
under CWA 301(b)(1)(A).
Frequently, EPA adopts nationally applicable ``effluent limitations
guidelines'' identifying the BCT and BAT standards to which specific
industrial categories and subcategories are subject. Until such
guidelines are published, however, CWA section 402(a)(1) requires that
EPA establish appropriate BCT and BAT effluent limitations in its NPDES
permitting actions on the basis of its best professional judgment
(BPJ). As further explained below, the permits proposed here include
some effluent limitations based on effluent limitation guidelines
codified at 40 CFR Part 412 and some limitations based on BPJ.
Pursuant to CWA 301(b)(1)(C), NPDES permits must include ``water
quality based'' effluent limitations if BAT and BCT limitations which
would otherwise be applied are not stringent enough to avoid discharges
causing exceedances of applicable water quality standards adopted by
states, Indian Tribes, and sometimes EPA. EPA is proposing additional
requirements for CAFOs located in watersheds that have been impaired by
CAFO-related activities to prevent further releases of nutrients,
particularly phosphorus, from impacting these watersheds.
In addition to effluent limitations, NPDES permits frequently
require that permittees implement ``best management practices'' (BMPs).
NPDES permits may include BMPs to control toxic pollutants in
accordance with CWA 304(e), when numeric effluent limitations are
infeasible and/or when reasonably necessary to assure compliance with
effluent limitations or standards or to carry out the purpose and
intent of CWA. See 40 CFR 122.44(k). As explained below, the proposed
CAFO general permits contain a number of BMPs.
What are CAFOs? CAFOs are facilities used to confine animals,
including poultry, for meat, milk, or egg production, or stabling, in
pens or houses, where the animals are fed or maintained at the place of
confinement. See 40 CFR 412.11(b).
What pollutants are associated with CAFOs. The characteristics of
waste from different CAFOs are substantially similar [Development
Document for Effluent Limitations Guidelines and New Source Performance
Standards for the Feedlots Point Source Category (Development
Document), January 1974]. The most commonly recognized contaminants
from CAFOs include biochemical oxygen demand (BOD), total suspended
solids (TSS), organics, bacteria, and plant nutrients (nitrogen and
phosphorus compounds). EPA encourages the proper utilization of such
plant nutrients for agricultural production of crops and forage, but
their improper storage and use may cause significant harm to the
quality of surface and ground waters. The effluent limitations and
requirements for all CAFOs covered by these general permits are
intended to avoid water quality problems.

II. Permit Coverage

Who needs to be covered by these permits? As noted in Part I.B. of
the draft permits, ``a permit is required for discharges from
operations classified as CAFOs.'' All facilities with more than 1000
animal units [or the number and types of animals specified in 40 CFR
part 122, Appendix B(a)] are eligible for coverage under the terms of
these permits.
What constitutes a discharge? A discharge of pollutants is any
addition of any pollutant or combination of pollutants from a point
source to waters of the United States. See CWA section 502(12); 40 CFR
122.2. This includes, but is not limited to, contaminated runoff from
corrals, stock piled manure, or silage piles; overflow from storage

[[Page 34876]]

ponds; overflow from animal watering systems which are contaminated by
manure; drainage of wastewater from land application areas;
contaminated runoff from land application fields in which wastewater is
applied at greater than the agronomic rate, runoff from fields on which
manure has been applied by placement on or in the soil if such runoff
results in a direct discharge of manure to waters of the U.S.; and
discharge of wastewater from retention structures to surface water via
a hydrologic connection. ``Waters of the United States'' is a very
broad term (defined at 40 CFR 122.2) which includes almost all surface
water bodies in the United States.
In accordance with Part II.A of the draft permits, a CAFO may
discharge waste or process wastewater only when rainfall events, either
chronic or catastrophic, cause an overflow of process wastewater from a
facility designed, constructed, and operated to hold all process
wastewater plus the runoff from a 25-year, 24-hour rainfall event for
the location of the CAFO. All other discharges are prohibited.
What are AFOs? Not all animal feeding operations (AFOs) are CAFOs.
Storm water discharges from other types of animal feeding operations
are generally exempt from NPDES regulation as point sources by CWA
section 502(14). Discharges from such facilities may nevertheless be
regulated under state laws.
Parts I.B. and VII.I. of the draft permits define ``CAFO'' in
accordance with 40 CFR 122.23 and 40 CFR part 122, Appendix B. For an
operation to be a CAFO, the facility must first qualify as an animal
feeding operation (AFO). A facility is an AFO if:
(1) Animals are kept onsite for a total of 45 days or more during
any 12-month period, and (2) crops, vegetation forage growth, or post-
harvest residues are not sustained on the facility during the normal
growing season.
The first part of this definition means that animals must be fed or
maintained on the lot or facility for a minimum of 45 days. It does not
mean that the same animals must remain on the lot for 45 days or more;
only that some animals are fed or maintained on the lot 45 days out of
any 12- month period. The 45 days do not have to be consecutive, nor
does the 12-month period have to correspond to the calendar year. For
example, the 12-month period may be counted from June 1 to the
following May 31.
The second part of this definition distinguishes feedlots from
pastures; pastures are not regulated as CAFOs. Feedlots with
constructed floors, such as solid concrete or metal slats, clearly
satisfy this part of the definition. Other feedlots may have open dirt
areas. These ``open dirt'' feedlots may have some vegetation growth
along the edges while animals are present or during months when animals
are kept elsewhere, but such marginal growth does not render them
pastures. Pastures are themselves not generally CAFOs, but wastewater
overflows from pastures used as land application sites for CAFO waste
are discharges and operation of such a site is subject to the
requirements of these permits.
CAFO Criteria. An AFO is a CAFO if:
(1) It is used to confine more than the number of animal units
listed at 40 CFR part 122, Appendix B(a) and Part VII.I(a) of the
permit. For example, dairies with more than 700 mature dairy cows or
feedlots with more than 1000 feeders are always CAFOs. These large
CAFOs are ``new sources'' and must provide additional information for
EPA to use in reviewing their operations for compliance with the
National Environmental Policy Act of 1969 (NEPA) before obtaining
coverage under these permits.
(2) It is used to confine the number of animal units listed in 40
CFR part 122, Appendix B(b) and Part VII.I(b) of the permit and it
discharges through a manmade conveyance or discharges directly to
surface waters. Conveyance of wastewater from the property to waters of
the United States through a pipe, ditch, lateral, channel gully, etc.,
is a discharge through a manmade conveyance. Direct discharge occurs
when a stream, creek, wetland or other water body runs through the
facility where it may contact CAFO waste. If confined animals have
direct access to such waters, a direct discharge is presumed. It should
be noted that even intermittent conveyed or direct discharges render a
facility in this category a CAFO. If an AFO has discharged in the past
and/or may discharge in the future, it is a CAFO.
(3) It is designated a CAFO by the Regional Administrator of EPA
Region 6 as a significant contributor of pollutants (SCP) in accordance
with 40 CFR 122.23(c)(2). This allows case-by-case regulation of
smaller, problem facilities which would not otherwise be considered
CAFOs under the criteria described above. Such designations occur only
after an onsite inspection and the facility must be notified before the
designation is effective.
What are ``animal units?'' ``Animal unit'' is a term defined in 40
CFR Part 122, Appendix B and the number of animals constituting a unit
varies according to animal type: one animal is not always equal to one
animal unit. Conversion to animal units is a procedure used to
determine pollution equivalents among the different animal types; one
dairy cow produces more waste than one sheep. Conversion to animal
units is also used in determining whether facilities with more than one
animal type onsite are CAFOs. Animal units are incorporated in the CAFO
criteria described above. Facilities with greater than 1000 animal
units (large facilities) are CAFOs. Facilities with between 300 and
1000 animal units (medium-sized facilities) that discharge through a
man-made conveyance or discharge directly into waters of the United
States are also CAFOs.
Is there an exception to CAFO status? 40 CFR Part 122, Appendix B
excludes AFOs which discharge only during a 25-year, 24-hour or greater
storm event from CAFO status. Experience has shown that this exclusion
has little practical effect, however. Even a facility properly designed
to retain all the storm water generated by that statistical storm event
plus all the waste accumulated at the facility may have to discharge as
a result of less but longer duration storm events. It is also very
difficult to show that a 25-year, 24-hour storm event has actually
occurred at most AFOs. Unless it is authorized to discharge by an NPDES
permit, even a properly designed and operated facility may thus be
subject to enforcement action under CWA. See Carr v. Alta Verde
Industries, 931 F.3d 1055 (5th Cir. 1991).
How do CAFOs obtain coverage under these general permits? Facility
operators must submit a ``Notice of Intent (NOI) to be covered'' to
obtain discharge authorization under these general permits to EPA
Region 6 and to any State/Tribal agency with regulatory jurisdiction
over the CAFO. See 40 CFR 122.28(b)(i). NOI submission requirements are
outlined in Part I.E. of the permits.
Who is eligible for coverage? Facilities with 1,000 animal units or
the number and types of animals specified in 40 CFR part 122, Appendix
B(a) are eligible for coverage under these draft permits. Specific
coverage requirements for existing, new, and expanding CAFOs are
specified in Part I.C (1), (2), and(3) of the proposed general permits.
Offsite operators wanting to dispose of manure at rates that exceed
phosphorus agronomic needs of crops in impaired watersheds must apply
for separate permit coverage in accordance with Part I.C (4) of the
watershed-specific draft permits.
Are there limitations on obtaining permit coverage? In accordance
with 40 CFR 122.28, EPA may determine that

[[Page 34877]]

providing coverage under a general permit is inappropriate for a
particular CAFO and EPA may require such a facility to apply for an
individual NPDES permit. Such an individual permit might be required,
for example, to assure that applicable water quality standards are
protected by imposing additional conditions on authorized discharges.
Part I.F of the draft permits lists circumstances in which an
individual permit (instead of a general permit) may be appropriate.
EPA conducts a NEPA review of all new CAFOs with more than 1000 AUs
before providing them coverage under the CAFO NPDES general permit. The
operator of such a proposed facility must submit an environmental
information document to EPA with its NOI. EPA will then conduct a NEPA
review to determine whether to provide permit coverage for the proposed
facility. EPA's decision will be subject to public participation and
documentation. Permittees must obtain documentation of the Agency's
final NEPA decision (e.g., a record of decision or finding of no
significant impact) before operating the CAFO and must maintain that
documentation onsite.
New CAFOs that will be located within one mile of the Texas Coastal
Zone Management Area are not eligible for coverage under the proposed
permits. Such CAFOs must apply for individual permits.
When will these permits expire? Since the terms of all NPDES
permits are limited to five years, pursuant to CWA section 402(b)(1)(B)
and 40 CFR 122.46(a), these permits will expire five years after they
are issued. If the permits are not reissued before they expire,
however, discharge authorization for CAFOs which obtained coverage
before the expiration date will continue until the agency makes final
decision on reissuance.

III. Permit Conditions

Today, EPA is proposing to reissue general permits originally
issued on February 3, 1993 (see 58 FR 7610). Most of the effluent
limitations and conditions of the reissued draft permits are the same
ones contained in those original permits and are based on the same
factors considered and described in the 1993 final publication. Though
these ``carryover'' conditions of the draft permits are nevertheless
subject to reconsideration in this action, EPA may impose less
stringent conditions only for reasons listed at CWA section 402(o) and
40 CFR 122.44(l). Some new record-keeping requirements have been added
to the draft permits to better assure compliance with the effluent
limitations and BMPs of the permits.
EPA is also proposing to issue watershed-specific general permits
for all CAFOs located in watersheds that have been impaired by CAFO-
related activities. The watershed-specific general permits include
requirements that are designed to protect the impaired watersheds
against further degradation resulting from manure and wastewater land
application fields.
The following water bodies and associated watersheds have been
impaired by CAFO-related activities and have been reported to EPA by
the States of Oklahoma and Texas in accordance with Section 303(d) of
the Clean Water Act:

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State Segment no. Segment name
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Texas.......................... 1255.................. Upper North Bosque River.
Oklahoma....................... OK120400010060........ Arkansas River.
OK220200020010........ Arkansas River.
OK120400010010........ Arkansas River.
OK621010010160........ Arkansas River, Salt Fork.
OK121700020310........ Baron Fork.
OK121700050010........ Baron Fork.
OK121700050170........ Baron Fork.
OK121700060040........ Battle Creek.
OK311210000010........ Beaver Creek.
OK410600010010........ Blue Ridge.
OK410600020010........ Blue Ridge.
OK220100030010........ Brazil Creek.
OK520600010010........ Canadian River.
OK121600030360........ Carey Bay, Grand Lake.
OK121600030340........ Cave Springs Branch.
OK121600030220........ Chigger Cove, Grand Lake.
OK620920020010........ Cimmaron River.
OK120410010100........ Cloud Creek.
OK310830060010........ Cobb Creek.
OK121600030260........ Court House Hollow Cove, Grand Lake.
OK520620010080........ Deer Creek.
OK520620060010........ Deer Creek.
OK121600030300........ Dillar Cove.
OK121600030080........ Duck Creek Cove, Grand Lake.
OK620920040010........ Eagle Chief Creek.
OK121600030350........ Echo Bay, Grand Lake.
OK121600050070........ Eucha Lake.
OK121600070110........ Fivemile Creek.
OK121700060010........ Flint Creek.
OK220100040010........ Fourche Maline Creek.
OK410210080010........ Glover Creek.
OK621010010020........ Great Salt Plains Lake.
OK121600030170........ Horse Creek Cove.
OK121700030010........ Illinois River.
OK121700030080........ Illinois River.
OK121700030280........ Illinois River.
OK121700030350........ Illinois River.
OK310820010160........ Ionine Creek.
OK310820010200........ Ionine Creek East.

[[Page 34878]]

OK310820010210........ Ionine Creek West.
OK410310010020........ Jackfork Creek.
OK410300010010........ Kiamichi River.
OK410300020010........ Kiamichi River.
OK310830060040........ Lake Creek.
OK121600030020........ Lake O' of the Cherokees (Grand).
OK121600030060........ Lake O' of the Cherokees (Grand).
OK121600030290........ Lake O' of the Cherokees, Honey Creek.
OK121600030150........ Lake O' of the Cherokees, Lower Middle.
OK121600030280........ Lake O' of the Cherokees, Middle.
OK311210000050........ Little Beaver Creek.
OK121600070120........ Little Fivemile Creek.
OK410210020010........ Little River.
OK410400050010........ Muddy Boggy Creek.
OK121600030010........ Neosho (Grand) River.
OK121600030050........ Neosho (Grand) River.
OK121600030140........ Neosho (Grand) River.
OK121600030270........ Neosho (Grand) River.
OK620910040260........ Northwood Lake.
OK121700050120........ Peacheater Creek.
OK220100020010........ Poteau River.
OK121600050150........ Spavinaw Creek.
OK620900040010........ Stillwater Creel.
OK310800010050........ Texoma Lake, Washita.
OK620910020030........ Turkey Creek.
OK620910060010........ Turkey Creek.
OK310800020010........ Washita River.
OK310820010010........ Washita River.
OK310830010010........ Washita River.
OK310830020010........ Washita River.
OK310830030010........ Washita River.
----------------------------------------------------------------------------------------------------------------

EPA is requesting comments from the public on whether the
watershed-specific general permits should be applicable to all
nutrient-impaired watersheds irrespective of the source of the
nutrients.
Effluent limitations. Part II.A of the draft permits prohibits
discharges of CAFO wastewater except as a result of catastrophic or
chronic rainfall events. This ``no discharge'' effluent limitation is
based on the effluent limitations guidelines for the feedlot category
promulgated at 39 FR 5704 (February 14, 1994) and codified at 40 CFR
Part 412. CWA Sec. 402(a)(1)(A) requires that EPA include this
limitation in NPDES permits for CAFOs with more than 1,000 animal
units. In the 1993 permit proceedings, EPA Region 6 found it
appropriate to apply the same effluent limitations to smaller CAFOs on
the basis of BPJ exercised under CWA Section 402(a)(1)(B).
Under the ``no discharge'' effluent limitation, permitted CAFOs may
discharge only during catastrophic or chronic rainfall conditions. A
catastrophic event is generally equivalent to a 25-year, 24-hour storm
event, but may also include tornadoes, hurricanes, or other
catastrophic conditions that would cause an overflow from a properly
designed and operated waste retention structure. Chronic rainfall is a
series of wet weather conditions that preclude dewatering of properly
maintained retention structures.
In most cases, the technology to achieve the ``no discharge'' limit
is containment of all contaminated liquid runoff resulting from
rainfall and subsequent application of these liquids, along with the
generated solid wastes, to productive crop land at agronomic rate,
i.e., a rate which will provide adequate moisture and nutrients that
can be utilized by the crops. To implement this technology requires a
wastewater retention structure, such as a lagoon, and provisions for
land application of the wastes to cropland, such as sprinklers.
Part II.B(1) of the draft permits prohibits the discharge of
process wastewater from retention structures to waters of the United
States by means of a hydrologic connection through ground water. This
prohibition is required to assure compliance with the ``no discharge''
effluent limitation and the purposes of CWA. Different federal courts
have reached different conclusions on whether EPA may regulate such
discharges, but the EPA Region 6 position is reflected by such cases as
Quivera Mining Co. v. USEPA, 765F. 2d 126(10th Cir. 1985); McClellan
Ecological Seepage v. Weinberger, 707 F. Supp. 1182, 1194 (E.D. Cal.
1988); Sierra Club v. Colorado Refining Co., Civ. No. CIV.A.93-K-1713
(D. Col. Dec. 8, 1993). Although this prohibition on discharging
through a groundwater connection is included in the broader ``no
discharge'' limitation at Part II.A of the draft permits, Region 6 also
includes it separately at Part II.B(1) to make its intentions clear in
this area.
The control of discharges through hydrologic connection is best
handled in the design phase of the control facility. The draft NPDES
general permits require the use of procedures recommended by the
Natural Resource Conservation Service of the U.S. Department of
Agriculture (USDA-NRCS) when designing control facilities. Installation
of liners is required as a part of facility construction.
Part II.B(2) of the draft permits prohibits the discharge of
contaminated runoff or drainage of land applied wastewater from land
application areas to waters of the United States. Wastewater must not
be applied at such a rate or under conditions that it runs off from the
application fields to waters of the U.S. Wastewater may not, for
example, be applied when the soil is saturated or frozen. Where
process-generated wastewater is used for irrigation of crops,
application rates shall not exceed the nutrient uptake of the crops
being produced on the land application areas.

[[Page 34879]]

Part II.B(3) of the draft permits prohibits the discharge of
contaminated runoff from land application areas where manure has been
placed on the soil surface, if such runoff will result in a direct
discharge of pollutants to waters of the United States. Manure should
be incorporated into the soil to minimize runoff, and edge-of-field
grass strips should be used to separate water courses from runoff.
Timing and rate of application must be in response to crop needs,
weather conditions, and soil conditions. Manure will not be applied to
land when the ground is frozen or saturated or during rainfall.
Part II.B(4) of the watershed-specific draft permits prohibits the
direct discharge of contaminated runoff from offsite land disposal
areas where manure is land applied at rates that exceed phosphorus
agronomic rates. Operators of facilities that intend to land apply
CAFO-generated manure or wastewater offsite at non-agronomic rates must
submit a separate NOI for coverage under these permits.

IV. Best Management Practices

Part II.D of the draft permits requires that all permittees develop
and implement site-specific BMPs specifically designed to assure
compliance with the permits' ``no discharge'' limitations. There are
two types of BMPs that must be implemented by all CAFOs: those BMPs for
management and control of wastes and wastewaters generated at the
animal confinement and maintenance areas of the CAFO, and BMPs for
properly disposing of waste/wastewater by land application at rates
based on agronomic needs of crops. The BMP requirements for the
confinement and maintenance areas and land application areas are
described below.

1. BMPs for Animal Confinement and Maintenance Areas

Part II.D(1) of the draft permits includes a description of BMPs
for (1) minimizing wastewater volumes generated from animal confinement
and maintenance areas, (2) management of precipitation runoff from
animal confinement and maintenance areas, and (3) ensuring that control
structures for wastewater containment are adequately designed,
constructed, operated, and maintained. The following are the BMPs that
must be implemented at the animal confinement and maintenance areas:
(1) all control structures must be designed, constructed, operated, and
maintained to contain all process-generated wastewaters plus the runoff
from a 25-year, 24-hour rainfall event for the particular location of
the CAFO; calculations must include allowances for surface retention,
infiltration, and other site-specific factors; (2) wastewater control
and retention structures or holding pens for new CAFOs may not be
located in the 100-year flood plain; wastewater control and retention
structures or holding pens for existing CAFOs that are located within
the 100-year flood plain must be protected by berms to prevent
inundation and damage that may occur during that flood event; (3) CAFOs
must not expand their operations prior to expanding their retention
control structures or holding pens; (4) no waters of the U.S. shall
come into direct contact with animals confined on the CAFO; open lots
must be isolated from outside surface drainage by ditches, dikes,
berms, terraces or other such structures designed to carry peak flows
expected at times when the 25-year, 24-hour rainfall event occurs; (5)
CAFO-related activities must not cause water quality impairment to
public or private drinking water wells; waste handling, treatment, and
management shall not create an environmental or a public health hazard
and shall conform with State/Tribal guidelines and/or regulations for
the protection of surface water quality; (6) potentially hazardous or
toxic chemicals shall be handled and disposed of in a manner such as to
prevent pollutants from entering the waters of the U.S.; (7) all
discharges to containment structures shall be composed entirely of
wastewaters from the proper operation of a CAFO and the precipitation
runoff from the CAFO areas; (8) dead animals must be disposed of in a
manner to prevent contamination of waters of the U.S. or create a
public health hazard; and (9) appropriate measures necessary to prevent
spills and to clean up spills of any toxic pollutants shall be taken;
any spills that may occur must be reported to EPA and State/Tribal
agencies as specified in Parts III.A and IV.D of the draft permits.

2. BMPs for Onsite Land Application of Waste/Wastewater

(a) Introduction
Numerous studies have shown that continued land application of
manure at rates based on nitrogen agronomic rates results in a build up
of soil phosphorus levels (Sharpley, et al, 1994). A recent publication
by the USDA-NRCS and EPA (Lander et. al., 1998) indicates that AFOs
produce more manure nutrients (nitrogen and phosphorus) than can be
utilized by crops in many parts of the U.S., suggesting that there is a
potential for nutrients, particularly phosphorus, to accumulate in
soils and eventually impact the surrounding water bodies. Information
submitted to EPA Region 6, in accordance with Section 303(d) of the CWA
and recent studies conducted by the Texas Institute for Applied
Environmental Research (TIAER) indicate that many watersheds in Region
6 have been impaired by CAFO-related activities. For example, the
surface water monitoring study conducted by TIAER (1997) showed a
strong correlation between the concentration of phosphorus in the upper
North Bosque River and the acreage of land application fields in the
watershed, upstream of the surface water monitoring stations. Based on
these data, the TIAER report concluded that the upper North Bosque
River watershed in Erath County, Texas, has been impaired by land
application activities.
EPA's objective, as specified in a recent draft of the EPA Strategy
for AFOs which was released in March 1998, is to include adequate
controls in NPDES permits to reduce the quantities of nutrients
entering water bodies. Several EPA Region 6 States, including Texas and
Oklahoma, have already established soil phosphorus concentration limits
in their State permits for CAFOs as a means of controlling nutrient
pollution. Texas, for example, has established a critical soil
phosphorus concentration of 200 mg/kg above which manure must be
applied based on phosphorus agronomic rates. Research has demonstrated
that a concentration of about 200 mg/kg phosphorus in the surface soil
is the critical level above which the concentration of phosphorus in
the runoff becomes environmentally significant. Sharpley and others
(1996) demonstrated that a soil phosphorus concentration of 200 mg/kg
(as determined by the Mehlich 3 Method) resulted in a phosphorus
concentration of 1,000 micrograms per liter in the runoff. According to
Wood (1998), the proposed allowable dissolved phosphorus limit for
agricultural runoff is 1000 micrograms per liter.
Another approach for determining when to switch from the nitrogen-
based manure application rate to a phosphorus-based rate is to
determine the percentage of phosphorus saturation in the land
application area soil. Dutch scientists have demonstrated that a soil
phosphorus saturation of 25% is the critical level above which the
phosphorus concentration in the soil is considered to be
environmentally unacceptable, because at this concentration, the
concentration of

[[Page 34880]]

phosphorus in the runoff increases and may exceed 1,000 micrograms per
liter. The phosphorus saturation index provides an indication of how
much of the phosphorus sorption capacity of a particular land
application area soil has been used up.
Hence, the phosphorus saturation measurement provides information
on both the potential of a soil to enrich runoff with dissolved
phosphorus (high degree of phosphorus saturation) and also helps to
predict how much of the phosphorus added to the land application area
soil as manure may be retained by the soil in a form that is relatively
resistant to be released into the runoff (low degree of phosphorus
saturation). However, the procedures for determining the soil
phosphorus saturation percentage have not been widely tested in the
United States.
The USDA-NRCS is currently developing a procedure for identifying
environmentally sensitive land application fields that could promote
phosphorus enrichment in water bodies when manure or wastewater is
applied to such fields (Lemunyon and Gilbert, 1993). The USDA-NRCS
procedure uses site-specific characteristics of the land application
site, including (1) potential soil erosion rates, potential runoff,
soil phosphorus concentration, and (2) manure management practices
(i.e., application rates and application methods) to assess the
capacity of the land application site to adsorb the phosphorus and
prevent it from impacting any surrounding water bodies. However, before
the USDA-NRCS completes its research, EPA Region 6 is proposing, as
specified in Part II.D(2)(d) of the watershed-specific general permits,
that rates of manure application in impaired watersheds be based on
phosphorus agronomic requirements of crops. Also, EPA Region 6 is
proposing to regulate offsite disposal of manure by land application at
rates that exceed phosphorus needs of crops as specified in Part
II.D(4) of the watershed-specific general permits.
(b) Waste Management Plan
Part II.D(2) of the draft permits requires all CAFOs that dispose
of wastes by land application to develop and implement a waste
management plan as specified in Part II.D(2). All wastes, including
Solids, sludges, manure, and other pollutants generated at the facility
shall be managed and disposed of in accordance with procedures
specified in such a site-specific waste management plan. Each waste
management plan shall describe the methods for, and account for, the
disposal of all manure and wastewater generated by the facility. If the
proposed methods of disposal include onsite or offsite land application
of manure and wastewater, the facility must develop a site-specific
nutrient utilization plan as described in Part II.D(2)(b).
(c) Nutrient Utilization Plan
If the waste management plan developed by the CAFO provides for
land application of the manure and wastewater generated at the
facility, the permittee must develop and implement a nutrient
utilization plan to minimize release of nutrients into waters of the
U.S. Such a plan must include the following information: (1) a site map
showing the proposed land application areas, including the major soil
types within the proposed land application areas; (2) crop rotations to
be implemented during the permit term; (3) methods and procedures for
analyzing nutrients in the land application area soils, manure, and
wastewater; (4) predicted yield goals for the particular crops that
will be grown; (5) procedures for calculating nutrient budgets that
must be used to determine waste application rates based on phosphorus
crop needs; equipment to be used during land application of manure and
wastewater and the procedures for inspecting and maintaining such
equipment; (6) projected rates and timing of application of the manure
and wastewater as well as other sources of nutrients that may be
applied to the land application areas to supplement the manure.
The permittee must maintain records of the actual rates and dates
of application of the manure, wastewater, or other nutrients applied to
the land application areas throughout the entire permit term. If the
manure and wastewater are to be sold or given away or disposed of in
areas that are not described in the facility's nutrient utilization
plan, the facility must keep records of landowner agreements for the
lands that will receive the manure and wastewater, and the nutrient
contents of the manure and wastewater applied to such lands.
The nutrient utilization plan must include (1) specific details for
nutrient sampling and testing of the land application soils, manure,
and wastewater [Part II.D(2)(c)], and (2) the basis and procedures for
determining agronomic rates of manure and wastewater application rates
[Part II.D(2)(b)].
Existing CAFOs must develop and implement a nutrient utilization
plan within one year following reissuance of the CAFO general permit.
New CAFOs must develop and implement a nutrient utilization plan
immediately following reissuance of the CAFO general permit. Designated
CAFOs must develop and implement a nutrient utilization plan within two
years following designation.
(d) Nutrient Sampling and Testing
Each permittee must conduct analytical tests to determine the
nutrient contents of the (1) manure and wastewater generated by the
facility, and (2) soils within the land application areas prior to the
first land application event at new CAFOs and the first seasonal land
application event at existing facilities, then once per quarter
thereafter. Frequencies can be increased when significant variations in
nutrient levels are experienced at a facility between sampling events,
or if there are identified or suspected water quality standards
violations. The permittee must then compare the nutrient contents of
the manure and wastewater with the nutrient contents of the land
application area soils to determine the needed fertility and
application rates for pasture production or production of other
targeted crop yields. The permittee must maintain records of all
nutrient sampling and analyses data, calculations, application rates
and utilized acreage of the land application area.
(e) Basis for Determining Agronomic Rates Outside of Impaired
Watersheds
According to Part II.D(2)(d) of the draft CAFO general permits,
manure and wastewater application rates must be based on agronomic crop
requirements for nitrogen or phosphorus, as determined from results of
nutrient sampling and testing. Application rates should be based on
nitrogen until the concentration of phosphorus in the soil increases to
the critical (threshold) level established by the State/Tribe in which
the CAFO is located or by the USDA-NRCS. Once the phosphorus threshold
is reached, the application rate must be based on phosphorus
requirements of the crop. The threshold phosphorus holding capacity of
the soil is the maximum concentration of phosphorus in the soil that
will not create an unacceptable risk of water quality impairment. The
CAFO operator must use the approach outlined below for determining
agronomic rates of waste/wastewater application:
(i) Apply manure and wastewater at rates based on the agronomic
crop needs of nitrogen if soil tests demonstrate that the concentration
of phosphorus in the surface soil (0 to 6 inch-depth) is or will be
consistently below the threshold level established by the State/Tribe
during the permit term. The threshold

[[Page 34881]]

soil phosphorus level for Texas is 200 mg/kg, as determined by using
procedures developed by Texas A&M University. If there is no threshold
soil phosphorus concentration limit established by the State/Tribe or
the USDA-NRCS, then continue to apply manure/wastewater at rates based
on nitrogen requirements of crops.
(ii) Apply manure and wastewater at rates based on the agronomic
crop needs of phosphorus if soil tests demonstrate that the
concentration of phosphorus in the surface soil exceeds the threshold
level recommended by the State/Tribe where the CAFO is located.
(iii) If soil tests indicate that the soil phosphorus concentration
will exceed the threshold phosphorus level during the permit term, the
permittee should begin to seek access to additional cropland or make
other adjustments that are necessary to comply with the phosphorus
limit established by the State/Tribe in which the CAFO is located.
(f) Basis for Determining Agronomic Rates in Impaired Watersheds
As specified in Part II.D(2)(d) of the watershed-specific general
permits, manure and wastewater must be land applied at rates based on
phosphorus agronomic requirements of crops to minimize risks of further
water quality impairments due to phosphorus. The CAFO operator must
develop and implement a phosphorus nutrient budgeting system to monitor
and balance the quantities of manure phosphorus added to the soil and
those removed in the harvestable portions of the crops produced on the
land application areas during the growing season. The quantities of the
phosphorus added to the land application area as manure should be
approximately equal to the quantities of phosphorus removed in the
harvestable portions of the crops if the CAFO operator is applying the
manure at phosphorus agronomic requirements of the crops being produced
on the land application areas.

3. Offsite Land Application

According to Part II.D(3) of both the reissued draft permits and
the proposed watershed-specific draft general permits, offsite land
application of manure at agronomic rates is not regulated. However,
whenever CAFO-generated manure is to be sold or given away for offsite
disposal by land application at agronomic rates, the CAFO operator must
provide current and accurate manure testing data that can be used by
the offsite applicator to establish agronomic rates of manure
application. The CAFO operator must provide information to the offsite
applicator concerning the voluntary measures and procedures for
applying the manure based on agronomic rates. The CAFO operator should
obtain, from the offsite applicator, information concerning the
location and acreage of the proposed offsite land application areas.
The CAFO operator must keep all records, including the information
provided by the offsite applicator, the dates, and the quantities of
the manure sold or given away. These records must be kept at the
facility. The CAFO operator must provide this information to the
Director whenever requested.

4. Offsite Disposal of Waste/Wastewater at Non-Agronomic Rates

When CAFO-generated manure or wastewater is land applied offsite at
non-agronomic rates, i.e., rates that exceed phosphorus agronomic
requirements of crops, pollutants are likely to be discharged to waters
of the United States as precipitation runoff. CAFO operators and third-
party operators of privately owned treatment works that land apply
CAFO-generated manure or wastewater offsite at non-agronomic rates are,
therefore, required to obtain permit coverage as specified in Part
I.C.(4) of the general permits for CAFOs in impaired watersheds, unless
they certify that the manure/wastewater will be applied at rates based
on phosphorus agronomic requirements of crops and that the agronomic
rates will be calculated by using a nutrient budgeting system.

5. Pollution Prevention Plan (PPP)

A site-specific PPP that includes a manure management plan, and a
nutrient utilization plan must be developed by each CAFO. Each PPP must
describe measures and practices to assure compliance with the
limitations and conditions of this permit. Large CAFOs with more than
1000 animal units must have, on site, and must implement a PPP
immediately following the effective date of the proposed general
permits. Medium-size CAFOs with less than 1000 animal units shall have,
on site, and must implement a PPP immediately following the effective
date of the general permits. Small CAFOs (with less than 300 animal
units) that have been designated by EPA as CAFOs shall have, on site,
and must implement a PPP within one year following designation.

V. Discharge Monitoring and Reporting Requirements

Monitoring and discharge requirements are included in Part III of
the draft permits. Monitoring data serve a number of functions under
the NPDES program. Discharge monitoring data can be used to assist in
the evaluation of the risk of the discharge by indicating the types and
the concentrations of pollutant parameters in the discharge. Discharge
monitoring data can be used in evaluating the potential of the
discharge to cause or contribute to water quality impacts and water
quality standards violations.
Discharge monitoring data can also be used to evaluate the
effectiveness of controls on reducing pollutants in discharges. This
function of monitoring can be important in evaluating the effectiveness
of source control or pollution prevention measures as well as
evaluating the operation of end-of-pipe treatment units. Where numeric
or toxicity effluent limits are incorporated into permits, discharge
monitoring data play a critical role by providing EPA and authorized
NPDES States with data to evaluate compliance with effluent limits. The
use of discharge monitoring data to determine permit compliance greatly
enhances the ability of EPA and authorized NPDES States to enforce
permit conditions.
Permits for industrial process discharges and discharges from POTWs
traditionally have incorporated numeric and/or toxicity effluent
limitations as permit conditions. Monitoring reports for these
discharges provide a direct indication of whether the discharge
complies with permit conditions. However, the proposed general permits
for CAFOs will require no discharge of pollutants into waters of the
U.S. Therefore, monitoring data will be required only in case of a
discharge from the retention system.

1. Discharge Notification

If there is a discharge, Part II.A of the draft permits requires
the permittee to notify the Director and the State/Tribe within 24
hours of the discharge from the retention facility, and to provide a
written notification to the Director and the State/Tribe within 14
working days of the discharge. The standard notification requirements
are specified in 40 CFR 122.44(i), 122.41(l)(4), and 122.41(l)(6). A
copy of the notification must be kept together with the PPP. The
discharge notification report should include the following:
(a) Description of the Discharge
A description and cause of the discharge, including an estimate of
the discharge volume; the period of discharge, including exact dates
and times, and, if not corrected, the anticipated time the discharge is

[[Page 34882]]

expected to continue, and steps being taken to reduce, eliminate and
prevent recurrence of the discharge; and if caused by a precipitation
event, information from the facility and the nearest National Weather
Service station concerning the size and duration of the precipitation
event.
(b) Analysis of the Discharge
The discharge must be analyzed for all conventional pollutants
associated with feedlot operation, including pH, biochemical oxygen
demand (BOD), total suspended solids (TSS), oil and grease, and fecal
coliform as well as nonconventional pollutants, including nutrients
such as phosphorus and nitrogen. High numbers of Fecal Coliform
bacteria are an indicator of the amount of pathogenic bacteria that are
being discharged to the receiving water. TSS is a common pollutant
found in discharges that can have significant impacts on receiving
waters. The biochemical oxygen demand measurement will help the
permitting authority evaluate the oxygen depletion potential of the
discharge. Five day Biochemical Oxygen Demand (BOD5) is the most
commonly used indicator of oxygen demand. The pH will provide important
information on the potential availability of metals to the receiving
flora, fauna, and sediment. In some cases it will provide information
regarding material management. In addition to conventional pollutants,
nutrients, such as total phosphorus, total Kjeldahl nitrogen (TKN), and
nitrate plus nitrite nitrogen must be measured because nutrients can
significantly impact water quality. Measurements taken for the purpose
of monitoring shall be representative of the monitored discharge.
Discharge monitoring and reporting requirements also include the need
to monitor for any pollutants the facility uses or stores on site which
have a potential to be in the discharge; for example, frequently used
cleaning agents and pesticides.

2. Discharge Reporting Requirements

All discharge information and data shall be made available to the
Director upon request as specified in Part III.B of the draft permits.
Signed copies of monitoring reports shall be submitted to EPA and the
State/Tribe, if requested. Signatory requirements are specified in Part
III.H of the draft permits. Penalties for falsification of data are
specified in Part III.C of the draft permits. The permittee shall
retain copies of all records of discharge monitoring for at least three
years from the date reported as specified in Part III.D of the draft
permit.
The permittee must also notify EPA and the State/Tribe within 30
days of a change in facility ownership or operational control. The
permittee must give advance notice to the Director of any planned
changes in the permitted facility or activity which may result in
noncompliance with permit requirements. The permittee must also report
all instances of noncompliance within 24 hours to the Director and
State/Tribe in accordance with the notification requirements of these
draft permits. The draft general permits have an ``adverse climatic
conditions'' provision in Part III.A(b) allowing a discharger to submit
a description of why samples could not be collected (in lieu of
sampling data) when the discharger is unable to collect samples due to
climatic conditions which prohibit the collection of samples, including
weather conditions that create dangerous conditions for personnel, such
as flooding, high winds, hurricane, tornadoes, and electrical storms.
The requirements for the type of samples taken vary, depending on
the nature of the retention structure. A minimum of one grab sample
must be taken to characterize discharges from overflow structures, such
as ponds or other impoundments.
CAFOs are not required to submit discharge monitoring reports
unless specifically requested by the Director. However, these
facilities must maintain records of sampling data collected during the
term of the permit as specified in Part III.D of the draft permits. The
permittee is required to retain records of all monitoring information,
copies of all reports required by these permits, and records of all
data for a period of at least three years from the date of the
measurement, report, or application. This period may be extended by the
Director.

VI. Pollution Prevention Plan Requirements

Part VI of the draft permits includes requirements for pollution
prevention plans (PPPs). Each CAFO covered by the draft general permits
must prepare, retain, and implement a PPP developed to allow the
implementation of site-specific measures for controlling pollutants
associated with CAFOs. At a minimum, the following requirements should
be addressed in the PPP to reduce pollutants in runoff from the
facility: (1) Identification of potential pollutant sources, (2) waste
management controls, (3) employee training, (4) inspection and
recordkeeping, (5) preventive maintenance, (6) discharge reporting and
notification procedures, (7) housekeeping procedures, (8) sedimentation
and erosion prevention measures, and (9) spill response procedures. The
key elements of the PPP are described below:
(a) Identification of Pollutant Sources
PPPs must be based on an accurate understanding of the pollution
potential of the site. The first part of the plan requires an
evaluation of the potential sources of pollution at the site. The
permittee must identify all activities and significant materials which
may potentially be significant pollutant sources. The PPP must include
a site or topographic map showing the drainage pattern at the facility;
arrows indicating the direction of surface water flow from the
facility; each existing structure to control precipitation runoff; and
surface water bodies which could receive the runoff.
(b) Wastewater Retention Facilities
The permittee shall keep documentation at the facility supporting
the adequacy of waste management control structures used to contain
wastewaters and storm waters from the animal confinement and
maintenance areas. The documentation must include all calculations used
to support design, construction, and the size of retention structures,
as well as all factors and calculations used in determining land
application rates, acreage, and crops. This documentation may be
developed by the NRCS or a professional consultant. This information
will allow the EPA to determine if the containment structure is
adequately designed to contain the required 25-year, 24-hour storm
event and whether waste is being land applied at agronomic rates. CAFOs
located in impaired watersheds must provide additional waste/wastewater
retention capacity to protect water quality. All CAFOs in impaired
watersheds must redesign their retention structures to include a top
freeboard of three feet and in no case the top freeboard must not be
less than two feet.
(c) Liner Requirement
In general, surface water flow in most of EPA Region 6 States is
sustained throughout much of the year by ground water inflow. As a
result, contaminants from containment structures may leak into the
ground water and eventually move toward local streams and rivers.
Therefore, the permittee must maintain, on site, documentation
indicating that no hydrologic connection exists between the contained
wastewater and surface waters of the United States. The permittee is
given two options to

[[Page 34883]]

demonstrate the lack of hydrologic connection: (1) Document that there
can be no significant leakage from the retention structure; or (2)
document that leakage from the retention structure would not migrate to
surface waters. These two options allow the permittee to take into
account the natural situation beneath the retention structure (such as
natural materials or isolated ground waters). Man made connections from
ground waters to surface waters via wells and irrigation must be taken
into account when determining hydraulic connections. If the permittee
cannot document the absence of a hydrologic connection, the containment
structure must have a liner (constructed of either man-made or natural
materials or a combination of the two) which will prevent the potential
contamination of surface waters. Liners for retention structures should
be constructed in accordance with good engineering practices and must
be certified by a certified professional scientist with knowledge and
experience in hydrogeology. Liner maintenance shall include inspection
at least once every two years. Liner design may be in accordance with a
NRCS plan.
Although the requirement in these draft permits for liner
installation is to protect surface waters, the permittee is strongly
encouraged to provide a liner for any containment structures to comply
with existing Federal, State or Tribal regulations for ground water
protection.
(d) Manure and Pond Solids Handling and Land Application
Requirements of the draft permits and the PPP do not allow the
storage of wastes where there is the potential for inadvertent release
to any surface water. Storage areas cannot be placed so as to be
threatened by flood waters. Wastes cannot be applied to land during or
immediately preceding rain events to avoid contaminated runoff. Land
application rates and procedures that are developed for the facility in
accordance with State/Tribe guidelines, may be made part of the PPP.
The PPP must include documentation indicating that the procedures for
the handling and disposal of wastewater, manure and pond solids comply
with permit requirements. Documentation of waste storage protocol, land
application procedures, and manure handling activities is a requirement
of the draft general permits to ensure that pollutants are not
discharged to waters of the United States. Permittees may use the
wastewater or manure as fertilizer. However, the permittee must limit
the application rate to the crop uptake rate of (1) phosphorus in
watersheds that have been impaired by CAFO-related activities, and (2)
nitrogen or phosphorus in non-impaired watersheds, depending on whether
the soil phosphorus concentration is below or above the phosphorus
threshold level for that State/Tribe.
(e) Preventive Maintenance
A preventive maintenance program involves inspection and
maintenance of all management devices as well as inspecting and testing
equipment and systems to uncover conditions that could cause breakdowns
or failures resulting in discharges of pollutants to surface waters. A
good preventive maintenance program includes identifying equipment or
retention systems used; periodically inspecting or testing equipment
and retention systems; adjusting, repairing, or replacing items; and
maintaining complete records on the equipment and retention systems.
(f) Good Housekeeping
Good housekeeping requires the maintenance of a clean, orderly
facility. Good housekeeping includes establishing housekeeping
protocols to reduce the possibility of mishandling chemicals or
equipment and training of employees in housekeeping techniques.
Pollutants that may enter retention structures at CAFO sites due to
poor housekeeping include oils, grease, paints, gasoline, truck
washdown, solvents, litter, debris, pesticides, insecticides, and
sanitary wastes. Good housekeeping protocol will include: (1)
designating areas for equipment maintenance and repair; (2) providing
waste receptacles at convenient locations for waste collection and
disposal; (3) locating equipment washdown areas on site and providing
appropriate control of washwaters; (4) providing protected storage
areas for chemicals, paints, solvents, fertilizers and other
potentially toxic materials; and (5) providing adequately maintained
sanitary facilities.
(g) Spill Prevention and Response Procedures
Areas where potential spills can occur, and their accompanying
drainage points should be identified in the PPP. Where appropriate,
specifying material handling procedures and storage requirements in the
plan should be considered. Procedures for cleaning up spills should be
identified in the plan and made available to the appropriate personnel.
The necessary equipment to implement a clean up should be available.
Spill response procedures should avoid discharging to retention
structures unless necessary because of immediate safety considerations.
The following information should be included in the PPP: (1) A written
description of materials that are used, stored, or disposed of at the
CAFO (such as pesticides, cleaning agents, fuels, etc.), (2)
information on spills, including a list of spills and leaks of toxic or
hazardous pollutants that occurred at the facility beginning one year
prior to the effective date of these permits and have the potential to
contribute pollutants to runoff waters, (3) a summary of any existing
sampling data describing pollutants in previous discharges, (4) other
information to consider, if applicable, include the manner and
frequency in which pesticides, herbicides, fertilizers or soil
enhancers are applied at the site and an evaluation of significant
spills or leaks of conventional, toxic and hazardous pollutants based
on a description of the materials released, an estimate of the volume
of the release, the location of the release, and any remediation or
cleanup measures taken.
(h) Sediment and Erosion Prevention
The PPP shall identify areas which, due to topography, activities,
or other factors, have a high potential for significant soil erosion
and measures to limit erosion.
(i) Employee Training
Employee training programs are necessary to inform personnel, at
all levels, of the responsibility of the requirements of the permit and
of the procedures outlined in the PPP. Training should address topics
such as spill response, good housekeeping and material management
practices. A PPP should identify periodic dates for such training.
(j) Inspections and Recordkeeping
The facility operator or a responsible person will be named in the
PPP to develop the plan and to conduct the required inspections and
reporting. This person will assist the facility manager in the
implementation, maintenance, and revision of the PPP. The activities
and responsibilities of the designated person should include all
aspects of the facility's PPP. However, the facility manager, not the
employee, should have overall responsibility and accountability for the
quality and implementation of the PPP.
Incidents such as spills, leaks and improper dumping, along with
other information describing the quality and quantity of discharges
should be included in the records. Inspections and

[[Page 34884]]

maintenance activities such as cleaning oil and grit separators or
catch basins should be documented and recorded.
Typical inspections should include visual examination of pipes,
pumps, tanks, supports, foundations, dikes, and drainage ditches.
Material handling areas should be inspected for evidence of, or the
potential for, pollutants entering the drainage system. A tracking or
follow up procedure must be used to ensure that appropriate and
adequate response and corrective actions have been taken. Records of
inspections are required to be maintained.
It is important that permittees conduct annual site inspections to
verify that the description of potential pollutant sources is accurate,
the site drainage map has been updated or otherwise modified to reflect
current conditions; and the controls outlined in the PPP to reduce
pollutants are being implemented and are adequate. Records documenting
significant observations made during the site inspection must be
retained as part of the PPP for a minimum of three years. This allows
EPA access to records of permit compliance much the same as all self-
reported information required in other NPDES permits.
(k) Consistency With Other Plans
Facilities which have requirements for retention capacity and land
application of wastes provided in site specific plans developed by
NRCS, or BMP programs developed by a professional consultant may
incorporate any part of such plans into the PPP by reference.

VII. Other Permit Requirements

1. Standard Permit Conditions

The draft permits include all of the standard conditions used in
NPDES permitting to insure proper implementation of the permit
requirements. Part IV of the proposed permit includes standard
conditions and requirements.

2. State Certification

Under CWA Section 401(a)(1), EPA may not issue an NPDES permit
until the State/Tribe in which the discharge originates grants or
waives certification to ensure compliance with appropriate requirements
of the Act and State or Tribal law. Section 301(b)(1)(C) of the Act
requires that NPDES permits contain conditions that ensure compliance
with applicable State/Tribal water quality standards or limitations.
The proposed permits contain limitations intended to ensure compliance
with State/Tribal water quality standards and has been determined by
EPA Region 6 to be consistent with the applicable State or Tribal water
quality standards and the corresponding implementation plans. EPA
Region 6 has requested that the (1) New Mexico Environmental Department
provide certification of general permits Nos. NMG80000 and NMG810000,
(2) Oklahoma Department of Agriculture provide certification of general
permits Nos. OKG8000 and OKG810000, and (3) Texas Natural Resources
Conservation Commission provide certification of general permits Nos.
TXG80000 and TXG810000. EPA has also requested the following Pueblos in
New Mexico: Pueblo of Isleta, Pueblo of Nambe, Pueblo of Picuris,
Pueblo of Pojoaque, Pueblo of Sandia, Pueblo of San Juan, Pueblo of
Santa Clara, and Pueblo of Tesuque to provide certification of general
permits Nos. NMG80000 and NMG810000.

3. Reopener Clause

EPA reserves the right to revise, revoke or modify the draft
permits to meet any applicable water quality standards if (1) effluent
limitations or guidelines are established or modified in an approved
State/Tribe Water Quality Management Plan or Waste Load Allocation and
if they are more stringent than those listed in these permits or
control a pollutant not listed in these permits; (2) a total daily
maximum load (TDML) is developed to address pollution from CAFOs in a
particular watershed. Permittees in that watershed may be required to
obtain individual permits or to obtain coverage under an alternative
general permit or the permits may be modified to include different
limitations and/or requirements; (3) a particular watershed is
identified by the State/Tribe as having been impaired by CAFO-related
activities. Permittees in that watershed may be required to obtain
individual permits or to obtain coverage under watershed-specific
general permits or the permits may be modified to include different
limitations and/or requirements.
The proposed permits are no discharge permits. In addition, the
BMPs specified in Part II.D, when implemented as specified in the draft
permits, will ensure that the State/Tribal water quality standards are
protected. Any CAFO that is determined to be contributing to a
violation of a water quality standard will not be eligible for coverage
under this permit and may be required to apply for an individual or
alternative general permit in accordance with Part I.F of these draft
permits.
If and when a particular watershed is identified by the State/Tribe
as having been impaired by CAFO-related activities, permittees in that
watershed may be required to obtain individual permits or to obtain
coverage under the watershed-specific general permits or the permits
may be modified to include different limitations and/or requirements.
Also, the watershed-specific general permits may be reopened or
modified to reflect changes in the State/Tribe's listing of CAFO-
impaired watersheds. Permit modification or revocation will be
conducted according to 40 CFR 122.62, 122.63, and 122.64.

VIII. Economic Impact

EPA believes that the proposed general permits will be economically
beneficial to the regulated community. The proposed general permits
provides an economic alternative to the individual NPDES permit
application process that facilities covered by these permits would
otherwise be required to follow. The requirements are consistent with
those already imposed by effective Federal regulations and State/Tribal
requirements. The suggested management practices and PPPs give the
regulated facilities guidelines and options which may save them time
and money.

IX. Compliance With Other Federal Regulations

1. NEPA Finding of No Significant Impact

For each new CAFO with more than 1000 animal units or the number
and types of animals specified in Part VII.I(a) of the permit [40 CFR
part 122, Appendix B(a)] and any existing CAFO planning to expand to
the number and types of animals specified in Part VII.I(a), EPA will
conduct a preliminary environmental review pursuant to the requirements
of CWA Section 511(c) and the environmental review procedures found at
40 CFR Part 6, ``Procedures for Implementing the Requirements of the
Council on Environmental Quality on the National Environmental Policy
Act'' for NPDES New Source Program. Therefore, new CAFOs and existing
CAFOs subject to National Effluent Guidelines (40 CFR part 412) will be
required to complete the form included in Addendum C of the proposed
general permits and submit this information to EPA prior to coverage
under the permits. The permittee must have documentation of ``No
Significant Impact'' or a completed Environmental Impact Statement in
accordance with an environmental

[[Page 34885]]

review conducted by EPA as a condition of permit coverage. This
documentation must be retained on site.

2. Endangered Species Act

The proposed general permits will authorize no discharge, other
than during catastrophic or chronic rainfall events which are
relatively infrequent occurrences. Therefore, reissuance of these
general permits is unlikely to adversely affect any listed threatened
or endangered species or designated critical habitat. EPA will conduct
an environmental review for each new CAFO with 1000 or more animal
units and all existing CAFOs planning to expand to the numbers of
animals specified in Part VII.I(a) of the draft permits [40 CFR part
122, Appendix B(a)]). This review will include an evaluation of the
potential impact on endangered species due to the proposed activities.
EPA Region 6 has submitted copies of the proposed permits to the
U.S. Fish & Wildlife Service. During the comment period of these
proposed permits, EPA will seek the Fish & Wildlife Service's
concurrence in its ``unlikely to adversely affect'' determination. In
the absence of such concurrence, EPA will initiate formal consultation
in accordance with Section 7(a)(2) of the Endangered Species Act.

3. National Historic Preservation Act

Facilities which adversely affect properties listed or eligible for
listing in the National Register of Historical Places are not eligible
for coverage under these draft permits. During the application process,
EPA will conduct an environmental review for each new CAFO with 1000 or
more animal units and all existing CAFOs planning to expand to the
number and types of animals specified in Part VII.I(a) of the draft
permits [40 CFR Part 122, Appendix B(a)]). This review will include an
evaluation of the potential effects on historic sites and properties
due to the proposed activities. If, at any time during the operation of
the CAFO, a permittee becomes aware that historic properties may be
affected by CAFO-related activities not identified during the
application process, the permittee must contact the State Historic
Preservation Officer (SHPO) or the Tribal Historic Preservation Officer
(THPO) to determine whether additional actions are required to meet the
eligibility requirements of the draft permits. This may result in
initiation of consultation with the SHPO or THPO and the development or
modification of a written agreement or the PPP. Therefore, reissuance
of these general permits will not adversely affect any listed
properties or properties that are eligible for listing in the National
Register of Historical Places.
All existing CAFOs with less than 1000 AUs will not be eligible for
coverage under the reissued permit if such facilities are already
affecting properties that are listed in the National Register of
Historic Properties. Existing CAFOs must comply with Part I.D(3) of the
draft permit.

4. Paperwork Reduction Act

The Office of Management and Budget (OMB) has approved the
information collection requirements related to the NOI and discharge
monitoring activities under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. (OMB Nos. 2040-0086 and 2040-0004,
respectively). EPA is currently developing the information collection
request (ICR) (EPA ICR no.1868.01) for the PPP-related activities and
will submit the ICR to OMB for approval.

5. Coastal Zone Management Act Reauthorization Amendment

Pursuant to Section 307 of the Coastal Zone Management Act (CZMA),
federal agency activities that affect the coastal zone of a state with
an approved coastal zone management plan must be carried out in a
manner consistent, to the maximum extent practable, with the
enforceable policies of that plan. To assure such consistency, EPA is
proposing to require individual permits for CAFOs located within a mile
of the Texas Coastal Zone Management Area. Applications for such
individual permits will be subject to CZMA Section 307(c)(3)(A) and
will receive the same type of review by the Coastal Coordination
Council of the Texas General Land Office (Administrator of Texas'
approved Coastal Zone Management Program) as corresponding permits
issued by the Texas Natural Resources Conservation Commission receive
under 31 Texas Administrative Code Section 505(11)(a)(6).

6. Unfunded Mandates Reform Act

Section 201 of the Unfunded Mandates Reform Act (UMRA), P.L. 104-4,
generally requires Federal agencies to assess the effects of their
``regulatory actions'' on State, local, and tribal governments and the
private sector. UMRA uses the term ``regulatory actions'' to refer to
regulations. (See, e.g., UMRA section 201, ``Each agency shall * * *
assess the effects of Federal regulatory actions * * * (other than to
the extent that such regulations incorporate requirements specifically
set forth in law)'' (emphasis added)). UMRA section 102 defines
``regulation'' by reference to section 658 of Title 2 of the U.S. Code,
which in turn defines ``regulation'' and ``rule'' by reference to
section 601(2) of the Regulatory Flexibility Act (RFA). That section of
the RFA defines ``rule'' as ``any rule for which the agency publishes a
notice of proposed rulemaking pursuant to section 553(b) of [the
Administrative Procedure Act (APA)], or any other law * * *''
NPDES general permits are not ``rules'' under the APA and thus not
subject to the APA requirement to publish a notice of proposed
rulemaking. NPDES general permits are also not subject to such a
requirement under the CWA. While EPA publishes a notice to solicit
public comment on draft general permits, it does so pursuant to the CWA
section 402(a) requirement to provide ``an opportunity for a hearing.''
Thus, NPDES general permits are not ``rules'' for RFA or UMRA purposes
but are treated with rule-like procedures.

Signed this 18, day of June, 1998.
Oscar Ramirez, Jr.,
Deputy Director, Water Quality Protection Division (6WQ), EPA Region 6.
[FR Doc. 98-16943 Filed 6-23-98; 8:45 am]
BILLING CODE 6560-50-P