[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: <a href="http://www.epa.gov/region6/6wq/npdes/
publicnotice.htm">www.epa.gov/region6/6wq/npdes/
publicnotice.htm</a>.

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