E8-24175. 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.

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 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 [phone] 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 [phone] to set up an appointment.

(2) ODA's Livestock Environmental Permitting Program office in Reynoldsburg, Ohio, weekdays from 8-5 p.m. Call [phone] to set up an appointment.

(3) Auglaize Soil and Water Conservation District Office (SWCD), 110 Industrial Drive, Suite G, in Wapakoneta, Ohio. Call [phone] to set up an appointment.

(4) Wayne SWCD, 428 West Liberty St., Wooster, Ohio. Call [phone] 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 [phone], extension 66089, or [phone]. See SUPPLEMENTARY INFORMATION for additional information.

FOR FURTHER INFORMATION CONTACT:

Matt Gluckman, [e-mail], at EPA Region 5, NPDES Programs Branch, WN-16J, 77 West Jackson Boulevard, Chicago, Illinois 60604, or [phone], extension 66089, or [phone].

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 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 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.