[Federal Register Volume 69, Number 234 (Tuesday, December 7, 2004)]
[Notices]
[Pages 70684-70687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26817]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7845-7]
Notice of Proposed NPDES General Permit for Discharges From
Concentrated Animal Feeding Operations (CAFOs) in New Mexico, Oklahoma,
and on Indian Lands in New Mexico and Oklahoma (NMG010000 and
OKG010000)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of draft NPDES general permit.
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SUMMARY: EPA Region 6 is proposing to reissue NPDES General Permit No.
NMG010000 and OKG010000 for discharges from CAFOs in New Mexico,
Oklahoma, and on Indian lands in New
[[Page 70685]]
Mexico and Oklahoma. 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. The applicable requirements from
that 1993 permit are continued in the current proposal to reissue. The
current proposal also adds additional requirements contained in revised
CAFO regulations at 40 CFR parts 122 and 412 which were published in
the Federal Register at 68 FR 7175 on February 12, 2003.
DATES: Comments on this proposed permit must be submitted by February
7, 2005.
ADDRESSES: Comments on this proposed permit should be sent to the
Regional Administrator, EPA Region 6, 1445 Ross Avenue, Dallas, Texas
75202-2733.
FOR FURTHER INFORMATION CONTACT: Ms. Diane Smith, EPA Region 6, 1445
Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-2145. The
complete fact sheet and proposed permit can be found on the Internet at
http://www.epa.gov/earth1r6/6wq/6wq.htm. Copies of the fact sheet and
proposed permit may also be obtained from Ms. Smith. In addition, the
current administrative record on the proposal is available for
examination at the Region's Dallas offices during normal working hours
after providing Ms. Smith 24 hours advanced notice.
SUPPLEMENTARY INFORMATION: EPA's comments and public hearing procedures
may be found at 40 CFR 124.10 and 124.12 (48 FR 14264, April 1, 1983,
as amended at 49 FR 38051, September 26, 1984). The comment period
during which written comments on the draft permit may be submitted
extends for 60 days from the date of this notice. During the comment
period, any interested person may request a Public Hearing by filing a
written request which must state the issues to be raised. A public
hearing will be held when EPA finds a significant degree of public
interest.
Regulated categories and entities include:
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Category Examples of regulated entities
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Industry............................ Operators of concentrated animal
feeding 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 of the 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.
Section 301(a) of the Clean Water Act (CWA or the Act), 33 U.S.C.
1311(a), makes it unlawful to discharge pollutants to waters of the
United States in the absence of authorizing permits. CWA section 402,
33 U.S.C. 1342, authorizes EPA to issue National Discharge Elimination
System (NPDES) permits allowing discharges on condition they will meet
certain requirements, including CWA sections 301, 304, and 401 (33
U.S.C. 1331, 1314 and 1341). Those statutory provisions require that
NPDES permits include effluent limitations requiring that authorized
discharges: (1) Meet standards reflecting levels of technological
capability, (2) comply with EPA-approved state water quality standards
and (3) comply with other state requirements adopted under authority
retained by states under CWA 510, 33 U.S.C. 1370.
A. Application for Coverage
To be covered by this permit, CAFO owners/operators must submit a
Notice of Intent (NOI) for permit coverage. The information required in
the NOI is listed in the permit and is required by Federal regulations
at 40 CFR 122.21(a)(1). For CAFOs that are not new sources, the
Endangered Species and National Historic Preservation Act eligibility
provisions contained in Appendices A and B of the permit must be met.
For new source CAFOs (Large CAFOs whose construction began after April
14, 2003), and new source expansions of existing CAFOs, the facility
must submit an Environmental Information Document (EID) that must
contain information for EPA's use in consultations under the Endangered
Species Act and National Historic Preservation Act. The EID enables EPA
in performing a National Environmental Policy Act (NEPA) environmental
review. Region 6 must have completed the NEPA review and issued an
Environmental Impact Statement (EIS) or Finding of No Significant
Impact (FNSI) for a new source CAFO before the facility is eligible for
coverage under the general permit.
The permit specifies the deadlines by which facilities must apply
for permit coverage. For facilities that were defined as CAFOs under
regulations in effect prior to April 14, 2003, and are not new sources,
coverage must be sought within 30 days after the effective date of this
permit. For newly defined CAFOs (operations defined as CAFOs as of
April 14, 2003), but not defined as CAFOs under regulations in effect
prior to that date (for example, dry manure-handling poultry operations
having as many or more than 125,000 birds), coverage must be sought no
later than February 13, 2006. For new sources, coverage must be sought
at least 30 days prior to the time the CAFO commences operation.
B. Limitations on Permit Coverage
In the proposed permit, certain CAFOs are not eligible for coverage
under this NPDES general permit, but must apply for an individual NPDES
permit:
1. CAFOs that have been notified by EPA to apply for an
individual NPDES permit in accordance with 40 CFR 122.28(b)(3).
2. CAFOs that have been notified by EPA Region 6 that they are
ineligible for coverge because of a past history of non-compliance.
3. CAFOs not meeting the Endangered Species and/or Historic
Properties eligibility requirements specified in the permit.
4. CAFOs commencing operation after June 25, 1992, discharging
to certain waters in Oklahoma that are designated as Outstanding
Resource Waters and/or Scenic Rivers in the Oklahoma Water Quality
Standards, Appendices A and B.
C. Effluent Limitations
The permit generally requires that there shall be no discharge of
manure, litter or process wastewater pollutants into waters of the U.S.
from the CAFO production area. Whenever precipitation causes an
overflow of manure, litter or process wastewater, however, pollutants
in the overflow may be discharged into U.S. waters provided the
production area is designed, constructed, operated and maintained to
contain all manure, litter and process wastewater, including the runoff
and direct precipitation from a 25-year, 24-hour rainfall event. The
design standard for new source swine, poultry and veal calf CAFOs is a
100-year, 24-hour rainfall event. The permit requires no discharge of
manure, litter or process wastewater from retention or control
structures to groundwater with a direct hydrologic connection to
surface waters of the U.S., and no discharge of rainfall runoff from
manure or litter storage piles. The permit also requires no discharge
of manure, litter or process wastewater to waters of the U.S. from land
application areas under the operational control of the CAFO. These
requirements are contained in the CAFO regulations at 40 CFR part 412
and/or the previous Region 6 NPDES general
[[Page 70686]]
permit for CAFOs in New Mexico and Oklahoma. The permit also contains a
number of additional requirements, which were contained in the previous
Region 6 CAFO general permit, for a CAFO's animal confinement, storage
and handling areas, and manure/wastewater land application areas.
D. Nutrient Management Plan (NMP)
The permit requires each CAFO covered by the permit to develop and
implement a site-specific NMP, as required by Federal regulations at 40
CFR parts 122 and 412. The permit gives the schedule for developing and
implementing an NMP. New source CAFOs are required to develop and
implement an NMP upon the date of permit coverage. The requirement for
other than new source CAFOs is to develop and implement an NMP no later
than December 31, 2006.
Other Legal Requirements
A. State/Tribal Certification
Under section 401(a)(1) of the Act, EPA may not issue an NPDES
permit until the State or Tribe in which the discharge will originate
grants or waives certification to ensure compliance with appropriate
requirements of the Act, state or tribal law. The Region has solicited
certification from the States of New Mexico and Oklahoma, and the
Pueblos of Acoma, Isleta, Nambe, Picuris, Pojoaque, Sandia, San Juan,
Santa Clara and Tesuque.
B. National Environmental Policy Act
With the exception of issuance of a permit to a ``new source'',
section 511(c)(1) of the Clean Water Act exempts EPA NPDES permit
actions from the requirements of the National Environmental Policy Act
of 1969 (NEPA). New source CAFOs are Large CAFOs on which construction
began after April 13, 2003. EPA anticipates that relatively few CAFOs
seeking coverage under the general permit will be such ``new sources''.
In the proposed CAFO general permit, a new source CAFO must go through
the NEPA environmental review process prior to applying for coverage
under the permit. A similar NEPA review procedure was used under the
previous Region 6 CAFO general permit issued in 1993.
C. Endangered Species Act
The Endangered Species Act (ESA) requires federal agencies, in
consultation with the U.S. Fish and Wildlife Service (FWS), to insure
that any action they authorize is not likely to jeopardize the
continued existence of any listed species or result in the destruction
or adverse modification of critical habitat. In order to fulfill it's
obligations under ESA, Region 6 has begun consultation with FWS
regarding reissuance of this general permit.
EPA proposes use of an eligibility screening mechanism to ensure
protection of listed species and their critical habitat. It is designed
to allow coverage under this general permit only to those existing
CAFOs that (1) have no listed species or critical habitat in their
county or in proximity to their CAFO or discharge locations; or (2)
have completed an ESA section 7 consultation that considered all
currently listed species and critical habitat and which resulted in
either a ``no jeopardy'' opinion by FWS or FWS concurrence that the
CAFO's permit-related activities are ``unlikely to adversely affect''
listed species or critical habitat; or (3) have an ESA section 10
permit which considers all currently listed species and critical
habitat; or (4) can document that the CAFO's permit-related activities
are ``not likely to adversely affect'' listed species or critical
habitat, or has reached agreement with FWS on measures to avoid or
eliminate adverse effects. Existing CAFOs that do not certify
compliance with one or more of those criteria cannot obtain coverage
under the general permit and must submit an individual permit
application. This eligibility screening mechanism is similar to that
included in several previously issued and proposed NPDES general
permits, including the proposed NPDES general permit for Small
Municipal Separate Storm Sewer Systems in New Mexico and in other areas
where Region 6 retains NPDES permitting authority, and the Multi-sector
Stormwater General NPDES Permit and the Construction Stormwater NPDES
General Permit for those same areas in Region 6.
Note: As a possible alternative to the ESA eligibility screening
mechanism requirements (1) and (4), above, EPA Region 6 is currently
working with the U.S. Fish and Wildlife Service (FWS), as a part of
its ESA consultation on the general permit, to geographically
designate areas of concern for endangered species and critical
habitat. Under this geographic alternative, the eligibility
requirement (1) would be met if a CAFO, or the point(s) where
authorized discharges reach waters of the U.S., is outside of any
designated areas of concern. Where a CAFO, or the point(s) where
authorized discharges reach waters of the U.S., is located within a
designated area of concern, the eligibility requirement (4) would
require the CAFO to meet conditions and measures to avoid or
eliminate adverse effects to listed species or critical habitat that
were caused by authorized discharges.
New source CAFOs and new source expansions of existing CAFOs must
include analysis of their potential effects on federally listed species
and critical habitat in their EIDs. If the CAFO may affect listed
species or critical habitat, EPA will integrate the required ESA
consultation with its NEPA review.
D. National Historic Preservation Act
Section 6 of the National Historic Preservation Act (NHPA) requires
that federal agencies consider the effects of their undertakings (such
as issuance of an NPDES permit) on properties listed or eligible for
listing in the National Register of Historic Places. Prior to
completion of such an undertaking, the Federal agency shall provide the
Advisory Council on Historic Preservation a reasonable opportunity to
comment on the undertaking. To fulfill its NHPA obligations, Region 6
is initiating consultation with the Oklahoma Historical Commission, the
New Mexico Historical Commission and Indian tribes in New Mexico and
Oklahoma.
EPA proposes an eligibility screening mechanism designed to
minimize harm to any properties listed or eligible for listing on the
National Register of Historic Places that may be directly and adversely
affected by the reissuance of this general permit. This mechanism is
designed to allow coverage under this general permit only to those
existing CAFOs (i.e., those on which construction commenced prior to
April 13, 2003) that (1) document that their permit-related activities
do not affect properties listed or eligible for listing on the National
Register of Historic Places; or (2) have obtained and are in compliance
with a written agreement with the appropriate State Historic
Preservation Officer and/or Tribal Historic Preservation Officer that
outlines measures to be taken to mitigate or prevent adverse effects to
historic properties. Existing CAFOs that do not certify compliance with
one of these criteria cannot obtain coverage under the general permit
and must submit an individual permit application. This eligibility
screening mechanism is similar to that included in several issued and
proposed NPDES general permits, including the proposed NPDES general
permit for Small Municipal Separate Storm Sewer Systems in New Mexico
and in other areas where Region 6 retains NPDES permitting authority,
and the Multi-sector Stormwater General NPDES Permit and the
Construction Stormwater NPDES General Permit for those same areas in
Region 6.
[[Page 70687]]
New source CAFOs must include an analysis of their potential
effects on properties listed or eligible for listing on the National
Register of Historic Places in their EIDs. If the CAFO may affect
eligible properties, EPA will integrate the required section 106
consultation with its NEPA review.
Dated: November 30, 2004.
Jane B. Watson,
Acting Director, Water Quality Protection Division, EPA Region 6.
[FR Doc. 04-26817 Filed 12-6-04; 8:45 am]
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