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Notice of Availability of Proposed National Pollutant Discharge Elimination System (``NPDES'') General Permit For Discharges From Concentrated Animal Feeding Operations in Arizona
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: September 1, 2000 (Volume 65, Number 171)]
[Notices]
[Page 53301-53304]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01se00-117]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6863-7]
Notice of Availability of Proposed National Pollutant Discharge
Elimination System (``NPDES'') General Permit For Discharges From
Concentrated Animal Feeding Operations in Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability of proposed NPDES general permit, and
request for comments.
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SUMMARY: The Regional Administrator, EPA, Region 9, is proposing to
issue an NPDES general permit (permit No. AZG800000) for discharges
from concentrated animal feeding operations (CAFOs) in Arizona. This
document announces the availability of the proposed general permit and
fact sheet for public comment. When issued, the proposed permit will
establish effluent limitations, prohibitions, best management practices
and other conditions governing the discharge of pollutants to waters of
the United States from these CAFOs.
DATES: Comments. Comments on the proposed general permit must be
received or postmarked no later than October 20, 2000.
Public Hearing. A public hearing to receive public comment
concerning the proposed general permit will be held on October 12, 2000
at 4 pm.
ADDRESSES: Comments. Public comments and requests for coverage should
be sent to: Environmental Protection Agency, Region 9, Attn: CWA
Standards and Permits Office, WTR-5. 75 Hawthorne Street, San
Francisco, California 94105-3901. EPA requests that interested parties
send a copy of their comments on the proposed general permit and fact
sheet to Linda Taunt, Reuse and Federal Permits Unit, Arizona
Department of Environmental Quality, 3033 North Central, Phoenix, AZ
85012.
Public Hearing. The public hearing will be held at: Arizona
Department of Environmental Quality, Room 1706, 3033 N. Central Avenue,
Phoenix, Arizona, 85012.
FOR FURTHER INFORMATION CONTACT: Shirin Tolle or Jacques Landy, EPA, at
the address listed above or telephone Shirin Tolle at (415) 744-1898 or
Jacques Landy at (415) 744-1922. Copies of the proposed general permit
and fact sheet will be provided upon request and are also available at
EPA, Region 9's website at http://www.epa.gov/region09/water/npdes/
index.html (permit link located under section heading Draft NPDES
permits).
SUPPLEMENTARY INFORMATION: Certification under section 401(a) of the
Clean Water Act: Under CWA, section 401(a)(1), EPA may not issue an
NPDES permit until a certification is granted or waived in accordance
with that section by the State in which the discharge originates or
will originate. EPA has initiated the certification process set forth
in 40 CFR 124.53 for the proposed permit. Persons wishing to comment on
certification of the proposed permit should contact the Arizona
Department of Environmental Quality or the appropriate Indian Tribe at
the address indicated in Appendix D of the proposed permit.
Administrative Record: The proposed NPDES general permit and other
related documents in the administrative record are on file and may be
inspected between 8:30 a.m. and 4:00 p.m., Monday through Friday,
excluding legal holidays, at the addresses shown below. U.S. EPA,
Region 9, CWA Standards and Permits Office (WTR-5), 75 Hawthorne
Street, San Francisco, CA 94105-3901.
Summary of Terms and Conditions of Proposed General Permit
A. Facility Coverage. The draft permit would cover Concentrated
Animal Feeding Operations (CAFOs as defined in 40 CFR 122.23(b)) in
Arizona and in Indian Country lands as set forth in Part II Section A
of the permit. CAFOs which have received notice to apply for an
individual permit from EPA would not be eligible for coverage under the
draft permit. EPA may, pursuant to 40 CFR 122.23(c), designate an
animal feeding operation as a CAFO if EPA determines that the operation
is a significant contributor of pollution to the waters of the United
States. Facilities that are designated as CAFOs under that provision
may be eligible for coverage under this permit. An owner or operator of
a CAFO eligible for coverage under the general permit may apply for an
individual permit rather than seek coverage under the general permit.
An owner or operator of a CAFO seeking coverage under the general
permit would be required to submit a Notice of Intent (NOI) to EPA, and
to the Arizona Department of Environmental Quality (ADEQ) or the
appropriate Indian Tribe. A NOI for an existing CAFO would have to be
submitted within 180 days after the effective date of the permit. An
owner or operator seeking coverage for a new facility would be required
to submit a NOI, and additional information identified in Appendix C of
the permit, at least
[[Page 53302]]
ninety days before the facility becomes a CAFO.
The proposed general permit will terminate five years after its
effective date. In accordance with 40 CFR 122.28(b)(3), EPA may require
any discharger authorized by the permit to apply for and obtain an
individual NPDES permit, and terminate or revoke coverage under this
general permit. Owners or operators authorized by the general permit
may also request to be excluded from the general permit's coverage by
applying for an individual permit.
B. Types of Discharges Authorized. The draft permit states that
there shall be no discharge of waste, process waste water, or process
waste water pollutants to waters of the United States except when storm
events cause an overflow of process waste water from a facility
designed, operated and maintained to contain all process generated
waste waters resulting from the operation of the CAFO, plus all
contaminated runoff from a 25-year, 24-hour storm event. The draft
permit also prohibits discharges which would cause or contribute to the
violation of a water quality standard except for discharges which are
``agricultural stormwater discharges and return flows from irrigated
agriculture'' within the context of Clean Water Act, section 502(14).
C. Effluent Limitations. The proposed permit includes technology-
based effluent limitations and standards based on the effluent
limitations guidelines for the Feedlots Point Source Category, 40 CFR
part 412. The permit also includes conditions designed to achieve water
quality standards established under CWA, section 303, including
Arizona's water quality criteria codified at Arizona Administrative
Code Title 18, Chapter 11, and federally promulgated water quality
standards codified at 40 CFR 131.31. Provisions requiring the use of
best management practices (BMPS) to control or abate the discharge of
pollutants are included in the permit pursuant to CWA, section
402(a)(1) and 40 CFR 122.43 and 122.44(k). Monitoring requirements are
included pursuant to 40 CFR 122.44(h), and conditions applicable to all
permits are included pursuant to 40 CFR 122.41.
A fact sheet briefly setting forth the principal facts and
significant factual, legal, methodological and policy questions
considered in preparing the draft permit is available as part of the
public record for this action.
The draft permit contains special conditions in Part III.B. which
include requirements for: a facility-specific best management practices
(BMP) plan, minimum standards, development of a comprehensive nutrient
management plan (CNMP), on-site and off-site disposal of waste water
and wastes, and record keeping and inspections.
The facility-specific BMP plan for an existing CAFO would be
developed and implemented within one year of the effective date of the
permit; the plan for a new CAFO would be submitted with the NOI. The
BMP plan would demonstrate the adequacy of waste water control and
retention structures, and describe the maintenance, inspection and
record keeping procedures, and other BMPs which the permittee will
implement to assure compliance.
Minimum standards included in Part IV.B.2 of the permit are related
to the location of waste water control or retention structures,
chemical handling, spill prevention, closure and other aspects of
operating a CAFO.
Contingent on the availability of final CNMP guidance and the
availability of ``certified specialist'' training in Arizona, the
permittee must complete a CNMP consistent with Natural Resources
Conservation Service (NRCS) guidance.
Prior to establishment of the CNMP, CAFO facilities which land
apply manure or waste water shall be required under the permit to
develop and implement a nutrient management plan (NMP) in accordance
with the National Resource Conservation Service (NRCS) Conservation
Practice Standard--Arizona nutrient management, Code 590.
The draft permit requires the permittee to notify EPA, and the
State or Indian Tribe, as appropriate, of discharges from the CAFO, and
to sample and analyze the material discharged.
The draft permit includes provisions similar to standard permit
conditions governing discharges in Arizona. The standard conditions
delineate legal, administrative, and procedural requirements of the
permit and also cover various topics including definitions, testing
procedures, record retention, notification requirements, penalties for
noncompliance, and permittee responsibilities.
D. EPA issuance of General Permits. Arizona has not received
approval to issue NPDES permits and otherwise administer the NPDES
program. Accordingly, EPA Region 9 is proposing to issue the general
permit governing discharges from CAFOs pursuant to CWA, section 402.
EPA may issue either individual or general NPDES permits. General
permits, and the conditions under which they may be issued, are
described at 40 CFR 122.28. EPA may issue a general permit to regulate
a category of point sources, if the sources all involve substantially
similar types of operations, discharge the same types of wastes,
require the same effluent limitations, require similar monitoring, and
are more appropriately controlled under a general permit than under
individual permits.
At present, there approximately 150 operations in Arizona whose
size qualifies them as CAFO operations. EPA Region IX has determined
that these CAFO operations maintain substantially similar types of
operations and have the potential to discharge similar types of wastes.
For these reasons, EPA Region IX believes that these facilities can be
governed under a general NPDES permit.
E. National Environmental Policy Act. Pursuant to CWA, section
511(c), and 40 CFR Part 6, EPA has conducted an environmental review of
the proposed action, and has tentatively determined that no significant
impacts are anticipated and that an Environmental Impact Statement
(EIS) is not required. EPA has prepared a draft environmental
assessment and Finding of No Significant Impact (FNSI), which are
available as part of the public record for this action. Interested
persons disagreeing with the decision not to prepare an EIS may submit
comments to Shirin Tolle or Jacques Landy, CWA Standards & Permits
Office (WTR-5), EPA Region 9, 75 Hawthorne Street, San Francisco, CA
94105-3901.
The proposed permit requires that a person seeking coverage for a
new CAFO must submit to EPA, and to the State or Indian Tribe, as
appropriate, an Environmental Information Document (EID), containing
the information identified in Appendix C, no later than 90 days before
the operation becomes a CAFO. This requirement will provide EPA an
opportunity to conduct an environmental review, determine if any
significant impacts are anticipated, determine if an environmental
impact statement is required and otherwise ensure compliance with NEPA
requirements, with respect to the proposed new source.
7. Endangered Species Act. Section 7(a)(2) of the Endangered
Species Act (ESA) requires that Federal agencies consult with the U.S.
Fish and Wildlife Service (FWS) to insure that any action authorized,
funded or carried out by them (also known as an ``agency action'') is
not likely to jeopardize the continued existence of any listed species
or result in the destruction or adverse modification of critical
habitat. This permit contains conditions to
[[Page 53303]]
ensure that the activities regulated by it are protective of species
that are listed under the ESA as endangered or threatened (known as
``listed species''), and listed species habitat that is designated
under the ESA as critical (``critical habitat''). In addition, the
permit's coverage does not extend to facilities likely to jeopardize
the continued existence of species proposed but not yet listed as
endangered or threatened or to cause the adverse modification of
habitat proposed to be designated critical habitat. EPA has tentatively
determined that the issuance of this permit will be a benefit to listed
species and critical habitat in that discharges from operating CAFO
facilities will be controlled and new and expanding facilities must
undergo a National Environmental Policy Act (NEPA) review including
evaluation of impacts to listed species and habitat. There is currently
no federal permit in effect that provides this level of protection for
CAFO facilities. After reviewing all relevant information, EPA has
tentatively determined that this permit may effect, but is not likely
to adversely effect listed species and critical habitat. EPA has
initiated informal consultation with the Arizona Field Office of FWS to
seek their concurrence with EPA's tentative determination, and will
conclude this consultation prior to issuing the final permit.
G. National Historic Preservation Act. The National Historic
Preservation Act (NHPA) and implementing regulations require the
Regional Administrator, before issuing a permit, to adopt measures when
feasible to mitigate potential adverse effects of the permitted
activity on properties listed or eligible for listing in the National
Register of Historic Places. The Act's requirements are to be
implemented in cooperation with State Historic Preservation Officers
and upon notice to, and when appropriate, in consultation with the
Advisory Council on Historic Preservation. The proposed permit provides
that CAFOs which are likely to adversely affect properties listed or
eligible to be listed in the National Register of Historic Places are
ineligible for coverage under the permit. The proposed permit also
requires that a person seeking coverage for a new CAFO must submit to
EPA, and to the State or Indian Tribe, as appropriate, an Environmental
Information Document (EID), containing information related to impacts
upon historical or archeological resources, no later than 90 days
before the operation becomes a CAFO. This requirement will provide EPA
an opportunity to ensure compliance with NHPA requirements with respect
to the proposed new source.
H. Permit Effective Date and Appeal Procedures. To ensure smooth
transition and allow current operators time to apply and prepare for
the new requirements, the effective date of the general permit is
proposed as the first day of the month that begins at least 45 days
after the State of Arizona has granted certification of the permit
under section 401(a) of the Clean Water Act.
Within 120 days following notice of EPA's final decision for the
general permit under 40 CFR 124.15, any interested person may appeal
the permit in the Federal Court of Appeals in accordance with section
509(b)(1) of the CWA. Persons affected by a general permit may not
challenge the conditions of a general permit as a right in further
Agency proceedings. They may instead either challenge the general
permit in court, or apply for an individual permit as specified at 40
CFR 122.21 (and authorized at 40 CFR 122.28) and then petition the
Environmental Appeals Board to review any condition of the individual
permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR 30886).
I. Paperwork Reduction Act. The information collection required by
this permit has been approved by Office of Management and Budget under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
in submission made for the NPDES permit program and assigned OMB
control numbers 2040-0086 (NPDES permit application) and 2040-0004
(discharge monitoring reports).
J. Economic Impact (Executive Order 12866). Under Executive Order
12866 (58 FR 51735 (Oct. 4, 1993)), the Agency must determine whether
the regulatory action is ``significant'' and therefore subject to OMB
review and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency; materially alter the
budgetary impact of entitlements, grants, user fees, or loan programs
or the rights and obligations of recipients thereof; or raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
EPA has determined that this proposed general permit is not a
``significant regulatory action'' under the terms of Executive Order
12866.
K. Unfunded Mandates Reform Act. Section 201 of the Unfunded
Mandates Reform Act (UMRA), Public Law 104-4, generally requires
Federal agencies to assess the effects of their ``regulatory actions''
on State, local, and tribal governments and the private sector. UMRA
uses the term ``regulatory actions'' to refer to regulations. (See,
e.g., UMRA section 201, ``Each agency shall * * * assess the effects of
Federal regulatory actions * * * (other than to the extent that such
regulations incorporate requirements specifically set forth in law)'').
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 Procedures Act (APA)], or any
other law * * *''
As discussed in the RFA section of this notice, NPDES general
permits are not ``rules'' under the APA and thus not subject to the APA
requirement to publish a notice of proposed rulemaking. NPDES general
permits are also not subject to such a requirement under the Clean
Water Act. While EPA publishes a notice to solicit public comment on
draft general permits, it does so pursuant to the CWA section 402(a)
requirement to provide ``an opportunity for a hearing.'' Thus, NPDES
general permits are not ``rules'' for RFA or UMRA purposes.
EPA has determined that the proposed general permit does not
contain a Federal requirement that may result in expenditures of $ 100
million or more for State, local and tribal governments, in the
aggregate, or the private sector in any one year.
The Agency also believes that the proposed general permit will not
significantly nor uniquely affect small governments. For UMRA purposes,
``small governments'' is defined by reference to the definition of
``small governmental jurisdiction'' under the RFA. (See UMRA section
102(1), referencing 2 U.S.C. 658, which references section 601(5) of
the RFA.) ``Small governmental jurisdiction'' means governments of
cities, counties, towns, etc., with a population of less than 50,000,
unless the agency establishes an alternative definition.
[[Page 53304]]
The proposed general permit also will not uniquely affect small
governments because compliance with the permit conditions affects small
governments in the same manner as any other entities seeking coverage
under the proposed general permit.
L. Regulatory Flexibility Act. Under the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., EPA is required to prepare a Regulatory
Flexibility Analysis to assess the impact of rules on small entities.
Under 5 U.S.C. 605(b), no Regulatory Flexibility Analysis is required
where the head of the Agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
The Agency takes the position that NPDES general permits are not
subject to rulemaking requirements under APA section 553 or any other
law. The requirements of APA section 553 apply only to the issuance of
``rules,'' which the APA defines in a manner that excludes permits. See
APA section 551(4), (6) and (8). The CWA also does not require
publication of a general notice of proposed rulemaking for general
permits. EPA publishes draft general NPDES permits for public comment
in the Federal Register in order to meet the applicable CWA procedural
requirement to provide ``an opportunity for a hearing.'' See CWA
section 402(a), 33 U.S.C. 1342(a).
Nevertheless, the Agency has determined that the permit will not
have a significant economic impact on a substantial number of small
entities. The permit requirements have been designed to minimize
significant administrative and economic impacts on small entities and
should not have a significant impact on regulated sources in general.
Moreover, the proposed general permit reduces a significant burden on
regulated sources of applying for individual permits.
M. Signature. Accordingly, I hereby find consistent with the
provisions of the RFA, that this proposed general permit will not have
a significant impact on a substantial number of small entities.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: August 24, 2000.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 00-22523 Filed 8-31-00; 8:45 am]
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