[Federal Register Volume 73, Number 200 (Wednesday, October 15, 2008)]
[Notices]
[Pages 61123-61126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24175]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8728-5]


State Program Requirements; Application To Administer the 
National Pollutant Discharge Elimination System (NPDES) Program for 
Concentrated Animal Feeding Operations (CAFOs); Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice: Proposed approval and hearing.

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SUMMARY: The State of Ohio has submitted a request for the 
Environmental Protection Agency (EPA) to approve a revision to the Ohio 
National Pollutant Discharge Elimination System (NPDES) program to 
allow the Ohio Department of Agriculture (ODA) to administer the parts 
of the program pertaining to concentrated animal feeding operations 
(CAFOs) and storm water associated with construction activity at animal 
feeding operations (AFOs) in Ohio. The Ohio Environmental Protection 
Agency (Ohio EPA) currently administers the Ohio NPDES program in its 
entirety. Under the proposed revision, Ohio EPA would continue to 
implement all other aspects of the State's approved NPDES program. EPA 
Region 5 received Ohio's request in January 2007. In April and November 
2007, EPA identified 31 technical and legal issues that ODA needs to 
resolve before EPA would be able to approve the ODA program. In a 
letter dated September 4, 2008, ODA committed to pursue specified 
statutory and administrative rule changes to address the issues 
identified by EPA. The ODA letter also included proposed statutory and 
rule changes beyond the scope of the changes needed to resolve the 
issues raised by EPA. ODA subsequently provided correct versions of 
certain proposed statutory and rule provisions that were not included 
with the September 4 letter. On October 3, 2008, EPA responded to ODA, 
stating its belief that enactment and adoption of the former changes 
would resolve EPA's issues, and that the latter changes proposed by ODA 
will not adversely affect ODA's authority to administer the NPDES 
program. The letter stated that EPA expects the adopted statutory and 
rule changes to be identical to those submitted with ODA's September 
2008 letters. As a result, EPA proposes to approve Ohio's application 
contingent on the enactment and adoption of the former changes, as 
documented in ODA's September 4 letter. Today, EPA is requesting 
comment on the State's application to have ODA administer the NPDES 
program for CAFOs and for storm water associated with construction 
activity at AFOs, and is providing notice of a public hearing and 
comment period on the Agency's proposal to approve Ohio's application. 
EPA will either approve or disapprove the State's request after 
considering all comments it receives. A final decision to approve the 
program would be contingent on Ohio's enactment and adoption of the 
statutory and rule changes needed to resolve EPA's issues, as 
documented in ODA's September 4 letter.

DATES: The public comment period will close on December 16. Comments 
must

[[Page 61124]]

be received or postmarked by no later than 11:59 p.m. on December 16, 
2008.
    Open House and Public Hearing. An open house and public hearing 
will be held on November 18, 2008. The public hearing will be conducted 
in accordance with 40 CFR 124.12. It will provide interested parties 
with the opportunity to provide written and/or oral comments for the 
record. EPA, ODA and Ohio EPA staff will be available before the 
hearing to answer questions during the open house. The hearing and open 
house will be held on November 18, 2008, at the following location: The 
Fawcett Center, 2400 Olentangy River Road, Columbus, Ohio 43210.

The open house will be from 3-5:30 p.m. in the Clinton Room. The Public 
Hearing will be held in the auditorium, from 7 p.m. until all testimony 
is heard or 9:30 p.m., whichever is earlier.
    Comments. Public comments may be in either paper or electronic 
format, although EPA encourages commenters to submit their comments 
electronically whenever possible. Send all paper copy comments to: Mr. 
Matt Gluckman, EPA Region 5, NPDES Programs Branch, WN-16J, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. Call Mr. Gluckman at (312) 
886-6089 before hand delivery to verify business hours. EPA requests 
that electronic comments include the commenter's postal mailing 
address. No Confidential Business Information (CBI) should be 
submitted. Submit electronic comments at http://www.epa.gov/region5/water/npdestek/odacafo.htm.
    To ensure that EPA can read, understand and therefore properly 
respond to comments, the Agency would prefer that paper comments be 
typed or legibly written and that commenters cite the paragraph(s) or 
sections in the notice or supporting documents to which each comment 
refers. Commenters who want EPA to acknowledge receipt of their 
comments should enclose a self-addressed stamped envelope.
    Viewing/Obtaining Copies of Documents. Copies of Ohio's application 
and all other documents in the official record are available for 
inspection at the following four locations:
    (1) EPA Region 5 office at 77 West Jackson Boulevard, 16th floor, 
Chicago, Illinois. The office hours are 8:45 a.m. to 4:45 p.m. Monday 
through Friday, except federal holidays. Call (312) 886-6089 to set up 
an appointment.
    (2) ODA's Livestock Environmental Permitting Program office in 
Reynoldsburg, Ohio, weekdays from 8-5 p.m. Call (614) 387-0908 to set 
up an appointment.
    (3) Auglaize Soil and Water Conservation District Office (SWCD), 
110 Industrial Drive, Suite G, in Wapakoneta, Ohio. Call (419) 738-4016 
to set up an appointment.
    (4) Wayne SWCD, 428 West Liberty St., Wooster, Ohio. Call (330) 
262-2836 to set up an appointment.

You may also visit http://www.epa.gov/region5/water/npdestek/odacafo.htm. To request the application on compact disc, call Matt 
Gluckman at (800) 621-8431, extension 66089, or (312) 886-6089. See 
SUPPLEMENTARY INFORMATION for additional information.

FOR FURTHER INFORMATION CONTACT: Matt Gluckman, 
<a href="/cdn-cgi/l/email-protection#791e150c1a121418175714180d0d111c0e391c0918571e160f"><span class="__cf_email__" data-cfemail="54333821373f39353a7a393520203c3123143124357a333b22">[email protected]</span></a>, at EPA Region 5, NPDES Programs Branch, WN-
16J, 77 West Jackson Boulevard, Chicago, Illinois 60604, or (800) 621-
8431, extension 66089, or (312) 886-6089.

SUPPLEMENTARY INFORMATION: Section 402 of the Clean Water Act (CWA) 
established the NPDES program under which EPA may issue permits for the 
point source discharge of pollutants to waters of the United States 
under conditions required by the Act. Section 402 also provides that 
EPA may approve a state to administer an equivalent state program, upon 
the Governor's request, provided that the state has appropriate legal 
authority and a program sufficient to meet the Act's requirements. The 
regulations applicable to state NPDES programs appear at 40 CFR part 
123. They allow states to share administration of their NPDES programs 
among two or more agencies. 40 CFR 123.1(g) and 123.62(c). The CWA and 
NPDES regulations can be found at: http://cfpub.epa.gov/npdes/regs.cfm?program_id=0. EPA approved Ohio's request to implement the 
NPDES program on March 11, 1974. That approval recognized Ohio EPA as 
the agency responsible for implementing the State's approved program.
    Under 40 CFR 123.62(c), states with approved NPDES programs must 
notify EPA whenever they propose to transfer all or part of any program 
from the approved state agency, and must identify any new division of 
responsibilities among the agencies involved. Under this section the 
new agency is not authorized to administer the program until the 
Regional Administrator approves the request. In a letter dated December 
28, 2006, Ohio Governor Taft requested EPA's approval of Ohio's request 
to transfer authority to ODA to run the NPDES program for CAFOs and 
storm water associated with construction activity at AFOs in Ohio. The 
State's request included a program description, an amendment to the 
Memorandum of Agreement (MOA) between EPA and the State of Ohio, the 
statutes and rules ODA will use to implement its NPDES program for 
CAFOs, a statement of legal authority from the Ohio Attorney General, 
and supporting documentation. The program description addresses, among 
other topics, how Ohio intends to transfer implementation of the NPDES 
program for CAFOs from Ohio EPA to ODA.
    EPA Region 5 received Ohio's request in January 2007. EPA completed 
its review of the application in the fall of 2007. EPA communicated the 
outcome of its review in April and November 2007 letters to ODA. The 
letters expressed concern regarding five provisions in ODA's standards 
for land application of manure, litter and process wastewater. The 
letters also asked ODA to clarify or revise 26 provisions of its legal 
authority or NPDES permitting requirements. In a letter dated September 
4, 2008, ODA committed to pursue specified statutory and rule changes 
to address the issues identified by EPA. ODA's letter also included 
other proposed statutory and regulatory changes beyond the scope of the 
changes needed to resolve the issues raised by EPA. ODA subsequently 
provided correct versions of certain proposed statutory and rule 
provisions that were not included with the September 4 letter. On 
October 3, 2008, EPA responded to ODA, stating its belief that 
enactment and adoption of the changes ODA has committed to pursue would 
resolve EPA's issues, and that the additional changes proposed by ODA 
will not adversely affect ODA's authority to administer the NPDES 
program.
    Following consideration of public comments and testimony, EPA will 
make a final decision regarding the State's request in accordance with 
section 402(b) of the CWA and 40 CFR part 123, including 123.62(b). To 
obtain EPA approval of this revision to Ohio's approved program, the 
State must show, among other things, that ODA has the authority to: (1) 
Issue proper permits for CAFOs and storm water discharges from 
construction of AFOs, (2) impose civil and criminal penalties for 
violations, and (3) ensure that the public is given notice and an 
opportunity for a hearing on each proposed permit within the scope of 
ODA's jurisdiction. As discussed above, in this case, final approval of 
the State's request is contingent on Ohio's enactment and adoption of 
the changes to Ohio law and administrative rules needed to resolve 
EPA's issues, as documented in ODA's September 4 letter. Upon enactment 
and adoption of these changes, the State will

[[Page 61125]]

need to provide for EPA's review an Attorney General's statement that 
has been updated to reflect the adopted provisions. Upon review of the 
adopted provisions, EPA will request a revised program description and 
a revised MOA, should they be necessary. After the close of the comment 
period, the Regional Administrator for EPA Region 5 will approve or 
disapprove Ohio's request for ODA to implement the NPDES program for 
CAFOs based on the requirements of section 402 of the Act and 40 CFR 
part 123. If the Regional Administrator approves the request, she will 
so notify the State and sign the proposed MOA. Notice would be 
published in the Federal Register and, as of the date of program 
approval, authority to issue and enforce NPDES permits for CAFOs and 
for construction-related stormwater from AFOs in Ohio would shift from 
Ohio EPA to ODA in accordance with the State's transition process 
described in its program description. If the Regional Administrator 
disapproves Ohio's request, the State will be notified of the reasons 
for disapproval and of any revisions or modifications to the program 
that are necessary to obtain approval.
    Open House. EPA, ODA and Ohio EPA staff will be available before 
the public hearing to answer questions.
    Public Hearing Procedures. The public hearing will be conducted in 
accordance with 40 CFR 124.12. It will provide interested parties with 
the opportunity to give written and/or oral comments for the official 
record. The following procedures will be used at the public hearing. 
(1) The Presiding Officer will conduct the hearing in a manner which 
will allow all interested persons wishing to make oral statements an 
opportunity to do so; however, the Presiding Officer may inform 
attendees of any time limits during the opening statement of the 
hearing. (2) Any person may submit written statements or documents for 
the hearing record. (3) The Presiding Officer may, in his or her 
discretion, exclude oral testimony if such testimony is overly 
repetitious of previous testimony or is not relevant to the proposal to 
approve the revision to the Ohio NPDES program. (4) The transcript 
taken at the hearing, together with copies of all submitted statements 
and documents, will become a part of the record submitted to the 
Regional Administrator. (5) Hearing statements may be oral or written. 
EPA encourages submission of written copies of oral statements for 
accuracy of the record and for use of the Hearing Panel and other 
interested persons. Persons wishing to make oral testimony supporting 
their written comments are encouraged to give a summary of their points 
rather than reading lengthy written comments verbatim into the record. 
All comments received by EPA Region 5 by the deadline for receipt of 
comments, or presented at the public hearing, will be considered by EPA 
before taking final action on Ohio's request for ODA to implement the 
NPDES program for CAFOs.
    Summary of Ohio's Submission. Ohio has requested to transfer the 
responsibility of regulating CAFOs and storm water associated with 
construction of AFOs under the NPDES program from Ohio EPA to ODA. This 
transfer would include, but not be limited to regulation of manure, 
litter, and process wastewater and construction and industrial storm 
water discharges from CAFOs, and construction-related storm water 
discharges from other AFOs. If Ohio's request is approved, Ohio EPA 
would continue to be responsible for implementing all other aspects of 
the State's approved NPDES program. ODA's proposed program is described 
in documents the State has submitted in accordance with 40 CFR 123.62, 
which include the following: A letter from the Governor requesting 
approval of the transfer; a program description outlining the 
procedures, personnel and protocols that will be relied on to implement 
ODA's permitting, compliance and enforcement program; a revision to the 
MOA between EPA and the State of Ohio; the statutes and rules ODA will 
use to implement its NPDES program; and a statement of legal authority 
signed by the Ohio Attorney General that describes ODA's authority to 
implement a program equivalent to the federal NPDES program with 
respect to CAFOs and storm water associated with construction of AFOs. 
The program description addresses, among other topics, how Ohio intends 
to transfer implementation of the NPDES program for CAFOs and for storm 
water associated with construction at AFOs from Ohio EPA to ODA. The 
following is a summary of these documents:
    Governor's Letter: Ohio's application includes a letter dated 
December 28, 2006, from Governor Bob Taft officially requesting 
approval to transfer from Ohio EPA to ODA the responsibility for 
administering and enforcing the NPDES program for CAFOs in Ohio 
pursuant to section 402(b) of the Act and 40 CFR part 123.
    Program Description: Pursuant to 40 CFR 123.62(b), EPA may require 
that a proposed revision to a state program include a modified program 
description. The program description must meet the minimum requirements 
of 40 CFR 123.22. It must provide a narrative description of the scope, 
structure, coverage and processes of the state program; a description 
of the organization and structure, staffing and position descriptions 
for the lead state agency; and itemized costs and funding sources for 
the program for the first two years after program approval. It must 
describe all applicable state procedures (including administrative 
procedures for the issuance of permits and administrative or judicial 
procedures for their review) and include copies of forms used in the 
program. It must further contain a complete description of the state's 
compliance and enforcement tracking program. ODA's program description 
includes the required information.
    Memorandum of Agreement (MOA): Pursuant to 40 CFR 123.62(b), EPA 
may require that a proposed revision to a state program also include a 
modified MOA. The MOA must meet the minimum requirements of 40 CFR 
123.24. An MOA is a document signed by each Agency, committing them to 
specific responsibilities relevant to the administration and 
enforcement of the state's program. An MOA specifies these 
responsibilities and provides structure for the state's program 
management and EPA's oversight of the state program. The revised MOA 
submitted by the State of Ohio has been signed by the Directors of ODA 
and the Ohio EPA. The Regional Administrator of EPA Region 5 will sign 
the document if she determines that Ohio's application is approvable 
after all comments received during the comment period have been 
considered.
    Attorney General's Statement: Pursuant to 40 CFR 123.62(b), EPA may 
require that a proposed revision to a state program include an Attorney 
General's Statement. Such statements must meet the minimum requirements 
of 40 CFR 123.23. The Attorney General must certify that the state has 
lawfully adopted statutes and regulations which provide the state 
agency with the legal authority to administer a permitting program 
within the scope of its jurisdiction in compliance with 40 CFR part 
123. The Attorney General's Statement from Ohio describes and cites 
State legal authority it believes adequate to authorize ODA to 
administer the NPDES program for CAFOs and storm water associated with 
construction activity at AFOs described in the program description. The 
Attorney General's Statement will need to be updated to reflect the 
adopted revisions to Ohio's laws and rules. Upon review of the adopted 
provisions, EPA will also

[[Page 61126]]

request a revised program description and a revised MOA, should they be 
necessary.
    Results of EPA's Review. EPA completed its review of Ohio's 
application in the fall of 2007. EPA communicated the results of its 
review in April and November 2007 letters to ODA. The letters expressed 
concern regarding five provisions in ODA's standards for land 
application of manure, litter and process wastewater. The letters also 
asked ODA to clarify or revise 26 provisions of its legal authority or 
NPDES permitting requirements.
    In a letter dated September 4, 2008, ODA's Director committed to 
pursue specified statutory and rule changes to address the issues 
identified by EPA. The Director's letter also included other proposed 
statutory and rule changes beyond the scope of the changes needed to 
resolve the issues raised by EPA. In letters dated September 22, 2008, 
ODA provided correct versions of certain proposed statutory and rule 
provisions that were not included with the September 4 letter. EPA 
believes that the former changes ODA has committed to pursue will 
resolve EPA's issues, and that the latter changes will not adversely 
affect ODA's authority to administer the NPDES program. All of ODA's 
proposed changes were included in the September 4 and 22 letters, and 
are available for public review as part of the official public record.
    Status of EPA's CAFO Rule. EPA is in the process of revising 
portions of the NPDES permitting requirements and Effluent Limitations 
Guidelines and Standards (ELGs) for CAFOs. EPA is acting in response to 
the order issued by the U.S. Court of Appeals for the Second Circuit in 
Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005), 
vacating or remanding portions of the 2003 rule. Ohio may need to 
further revise its NPDES program to implement these federal revisions 
when they are finalized. EPA will provide Ohio the same time period 
from the promulgation date of the revised federal rule to change its 
legal authority that EPA provides to other states with approved NPDES 
programs. 40 CFR 123.62(e). This rule gives states one year where rule 
changes are needed and two years where statutory changes are needed to 
incorporate new federal regulations into state law. This future process 
is separate from the process described above regarding Ohio's request 
for ODA to administer the NPDES program for CAFOs and for storm water 
associated with construction of AFOs.
    Public Comment on the Described Program. Today, EPA is requesting 
comments on Ohio's request, and providing notice of a public hearing 
and comment period on EPA's proposal to approve Ohio's application in 
accordance with 40 CFR 123.62. EPA wants the citizens of Ohio to 
understand the State's application, and wants to encourage public 
participation in the decisionmaking process. Therefore, EPA requests 
that the public review ODA's proposed NPDES program for CAFOs and storm 
water associated with construction activity at AFOs, and provide any 
comments they feel are appropriate. EPA will consider all comments in 
its decision. EPA will either approve or disapprove the State's request 
after considering all comments it receives. EPA expects the adopted 
statutory and rule changes to be identical to those submitted with 
ODA's September 2008 letters.

    Authority: This action is taken under the authority of section 
402 of the Clean Water Act as amended, 33 U.S.C. 1342. I hereby 
provide public notice of the application by the State of Ohio for 
the Ohio Department of Agriculture to implement the NPDES program 
for CAFOs and storm water associated with construction activity at 
AFOs, in accordance with 40 CFR 123.62.

    Dated: October 3, 2008.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. E8-24175 Filed 10-14-08; 8:45 am]
BILLING CODE 6560-50-P


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