[Federal Register Volume 67, Number 138 (Thursday, July 18, 2002)]
[Notices]
[Pages 47362-47364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17981]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7247-2]


Notice of Final NPDES General Permit for Egg Production 
Operations in New Mexico, Oklahoma, and on Indian Lands in New Mexico 
and Oklahoma NMG800000 and OKG800000

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Final Issuance of NPDES general permit.

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SUMMARY: EPA Region 6 today issues a National Pollutant Discharge 
Elimination System (NPDES) general permit regulating discharges, or 
potential discharges, from egg production operations (EPOs). The permit 
prohibits the discharge of process wastewater pollutants to waters of 
the United States, except when a catastrophic rainfall event causes an 
overflow of process wastewater from a facility properly designed, 
constructed, maintained, and operated to contain (1) all process 
generated wastewater resulting from the operation of the EPO, plus (2) 
all runoff from a 25 year, 24-hour rainfall event for the location of 
the EPO. The permit prohibits the discharge of process wastewater 
pollutants from retention or control

[[Page 47363]]

structures to groundwater that has a direct hydrologic connection to 
waters of the United States. The permit also contains a number of 
specific requirements to protect water quality. In addition, the permit 
requires each EPO covered by the permit to develop and implement a 
site-specific Comprehensive Nutrient management Plan (CNMP) that 
includes the following elements as appropriate to the needs and 
circumstances of the permitted facility: Animal outputs; manure 
handling and storage; land application of manure and wastewater; site 
management; record keeping; and other manure and/or wastewater 
utilization options.
    This general permit is available for any EPO that has agreed to 
participate in the United Egg Producers (UEP) XL Project and has met 
the qualification requirements specified in the permit. The XL project 
requires an EPO to implement a multi-media environmental management 
system (EMS) which controls a range of significant environmental 
impacts including those not subject to regulation under the Clean Water 
Act, such as odor and pest control. The XL project also includes a 
third-party auditing component and on-farm management practices most 
likely to result in superior environmental performance. Each facility's 
EMS will be required to pass the independent third-party audit before 
the facility can apply for coverage under the general permit.

DATES: This permit shall become effective on August 19, 2002.

FOR FURTHER INFORMATION CONTACT: Ms. Diane Smith, EPA Region 6, 1445 
Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-2145. Copies 
of the complete final permit and Response to Comments may be obtained 
from Ms. Smith. The permit and Response to Comments can also be found 
on the Internet at http://www.epa.gov/earth1r6/6wq/6wq.htm.

SUPPLEMENTARY INFORMATION:
    Regulated categories and entities include:

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              Category                  Examples of regulated entities
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Industry............................  Operators of egg production
                                       operations.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your (facility, company, business, organization, etc.) is regulated by 
this action, you should carefully examine the applicability criteria in 
Part I, Section A.1 of this permit. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
    Pursuant to section 402 of the Clean Water Act, 33 U.S.C. section 
1342, EPA proposed and solicited public comment on NPDES General Permit 
NMG800000 and OKG800000 at 66 FR 50646 (October 4, 2001). Region 6 
received written comments from the National Resources Defense Council 
(NRDC), the New Mexico Environment Department (NMED) and the Pueblo of 
Sandia. In addition, Oklahoma Department of Environmental Quality 
(ODEQ) and the Pueblo of San Juan conditionally certified the permit. 
As a result of these comments and conditions of certification, several 
changes were made in the final permit.
    Permit coverage was expanded to include EPOs having liquid manure 
handling systems and/or unlimited continuous flow watering systems, 
allowing such EPOs to have the opportunity to participate in the UEP XL 
Project. Since new source performance standards were promulgated for 
these liquid manure EPOs in 1974, all EPOs having liquid manure 
handling systems that are eligible for coverage under this permit will 
be considered ``new sources'' and subject to an environmental review 
under the National Environmental Policy Act (NEPA). A permit 
requirement has been added that these ``new sources'' must furnish 
proof that they have gone through the NEPA review and have been issued 
an Environmental Impact Statement or Finding of No Significant Impact 
by Region 6.
    To comply with ODEQ's conditional certification, Oklahoma EPOs 
located in certain areas, such as the entire watershed of Outstanding 
Resource Waters or State-designated Scenic Rivers, as well as other 
locations specified in the certification, are not eligible for coverage 
under this general permit. In addition, the Pueblo of San Juan's 
conditions of certification, including the requirement to submit a 
monitoring plan in accordance with the San Juan Pueblo Water Quality 
Monitoring Plan, were added for EPOs located on Pueblo of San Juan 
lands. Since the Pueblo of Isleta denied certification, EPOs located on 
Pueblo of Isleta lands are not eligible for coverage under this general 
permit. In response to comments, several additional minor changes were 
made to the permit to clarify permit requirements.

Other Legal Requirements

A. State Certification

    Under section 401(a)(1) of the Act, EPA may not issue an NPDES 
permit until the State in which the discharge will originate grants or 
waives certification to ensure compliance with appropriate requirements 
of the Act and State law. The Region received certification from the 
States of New Mexico, Oklahoma, and the Pueblos of Sandia and San Juan. 
The Pueblo of Isleta denied certification and the Pueblos of Acoma, 
Nambe, Picuris, Pojoaque, Santa Clara, and Tesuque waived 
certification.

B. Endangered Species Act

    EPA Region 6 is currently engaged in consultation under section 7 
of the Endangered Species Act with the U.S. Fish and Wildlife Service 
regarding this permit action. While EPA is issuing the permit at this 
time, EPA may decide that changes to the permit are warranted based on 
the results of the consultation when it is completed. A reopener 
provision to this effect has, therefore, been included in Part I.H of 
the permit.

C. Historic Preservation Act

    Facilities which adversely affect properties listed or eligible for 
listing in the National Register of Historical Places are not 
authorized to discharge under this permit.

D. Economic Impact (Executive Order 12866)

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may have an annual effect 
on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or raise novel legal or policy issues arising out 
of legal mandates, the President's priorities, or the principles set 
forth in the Executive Order. EPA has determined that this

[[Page 47364]]

general permit is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 and is therefore not subject to formal 
OMB review prior to proposal.

E. Paperwork Reduction Act

    The information collection required by this permit has been 
approved by OMB under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., in submission made for the NPDES permit program 
and assigned OMB control numbers 2040-0086 (NPDES permit application) 
and 2040-0004 (discharge monitoring reports).

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq, requires that 
EPA prepare a regulatory flexibility analysis for regulations that have 
a significant impact on a substantial number of small entities. As 
discussed below, the permit being proposed to be reissued is not a 
``rule'' subject to the Regulatory Flexibility Act. EPA prepared a 
regulatory flexibility analysis, however, on the promulgation of the 
Coastal Subcategory guidelines on which many of the permit's effluent 
limitations are based. That analysis shows that compliance with the 
permit requirements will not result in a significant impact on 
dischargers, including small businesses, covered by these permits. EPA 
Region 6 therefore concludes that the permits proposed today will not 
have a significant impact on a substantial number of small entities.

G. Unfunded Mandates Reform Act

    Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 
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 Clean Water Act (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.
    EPA thinks it is unlikely that this proposed permit issuance would 
contain a Federal requirement that might result in expenditures of $100 
million or more for State, local and tribal governments, in the 
aggregate, or the private sector in any one year. The Agency also 
believes that the proposed permit issuance would not significantly nor 
uniquely affect small governments. For UMRA purposes, ``small 
governments'' is defined by reference to the definition of ``small 
governmental jurisdiction'' under the RFA. (See UMRA section 102(1), 
referencing 2 U.S.C. 658, which references section 601(5) of the RFA.) 
``Small governmental jurisdiction'' means governments of cities, 
counties, towns, etc., with a population of less than 50,000, unless 
the agency establishes an alternative definition. The proposed permit 
issuance also would not uniquely affect small governments because 
compliance with the proposed permit conditions affects small 
governments in the same manner as any other entities seeking coverage 
under the permit.

    Dated: July 2, 2002.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
[FR Doc. 02-17981 Filed 7-17-02; 8:45 am]
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