02-17981. Notice of Final NPDES General Permit for Egg Production Operations in New Mexico, Oklahoma, and on Indian Lands in New Mexico and Oklahoma NMG800000 and OKG800000

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Final Issuance of NPDES general permit.

SUMMARY:

EPA Region 6 today issues a National Pollutant Discharge Elimination System (NPDES) general permit regulating discharges, or potential discharges, from egg production operations (EPOs). The permit prohibits the discharge of process wastewater pollutants to waters of the United States, except when a catastrophic rainfall event causes an overflow of process wastewater from a facility properly designed, constructed, maintained, and operated to contain (1) all process generated wastewater resulting from the operation of the EPO, plus (2) all runoff from a 25 year, 24-hour rainfall event for the location of the EPO. The permit prohibits the discharge of process wastewater pollutants from retention or control structures to groundwater that has a direct hydrologic connection to waters of the United States. The permit also contains a number of specific requirements to protect water quality. In addition, the permit requires each EPO covered by the permit to develop and implement a site-specific Comprehensive Nutrient management Plan (CNMP) that includes the following elements as appropriate to the needs and circumstances of the permitted facility: Animal outputs; manure handling and storage; land application of manure and wastewater; site management; record keeping; and other manure and/or wastewater utilization options.

This general permit is available for any EPO that has agreed to participate in the United Egg Producers (UEP) XL Project and has met the qualification requirements specified in the permit. The XL project requires an EPO to implement a multi-media environmental management system (EMS) which controls a range of significant environmental impacts including those not subject to regulation under the Clean Water Act, such as odor and pest control. The XL project also includes a third-party auditing component and on-farm management practices most likely to result in superior environmental performance. Each facility's EMS will be required to pass the independent third-party audit before the facility can apply for coverage under the general permit.

DATES:

This permit shall become effective on August 19, 2002.

FOR FURTHER INFORMATION CONTACT:

Ms. Diane Smith, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone [phone]. Copies of the complete final permit and Response to Comments may be obtained from Ms. Smith. The permit and Response to Comments can also be found on the Internet at http://www.epa.gov/​earth1r6/​6wq/​6wq.htm.

SUPPLEMENTARY INFORMATION:

Regulated categories and entities include:

Category	Examples of regulated entities
Industry	Operators of egg production operations.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your (facility, company, business, organization, etc.) is regulated by this action, you should carefully examine the applicability criteria in Part I, Section A.1 of this permit. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Pursuant to section 402 of the Clean Water Act, 33 U.S.C. section 1342, EPA proposed and solicited public comment on NPDES General Permit NMG800000 and OKG800000 at 66 FR 50646 (October 4, 2001). Region 6 received written comments from the National Resources Defense Council (NRDC), the New Mexico Environment Department (NMED) and the Pueblo of Sandia. In addition, Oklahoma Department of Environmental Quality (ODEQ) and the Pueblo of San Juan conditionally certified the permit. As a result of these comments and conditions of certification, several changes were made in the final permit.

Permit coverage was expanded to include EPOs having liquid manure handling systems and/or unlimited continuous flow watering systems, allowing such EPOs to have the opportunity to participate in the UEP XL Project. Since new source performance standards were promulgated for these liquid manure EPOs in 1974, all EPOs having liquid manure handling systems that are eligible for coverage under this permit will be considered “new sources” and subject to an environmental review under the National Environmental Policy Act (NEPA). A permit requirement has been added that these “new sources” must furnish proof that they have gone through the NEPA review and have been issued an Environmental Impact Statement or Finding of No Significant Impact by Region 6.

To comply with ODEQ's conditional certification, Oklahoma EPOs located in certain areas, such as the entire watershed of Outstanding Resource Waters or State-designated Scenic Rivers, as well as other locations specified in the certification, are not eligible for coverage under this general permit. In addition, the Pueblo of San Juan's conditions of certification, including the requirement to submit a monitoring plan in accordance with the San Juan Pueblo Water Quality Monitoring Plan, were added for EPOs located on Pueblo of San Juan lands. Since the Pueblo of Isleta denied certification, EPOs located on Pueblo of Isleta lands are not eligible for coverage under this general permit. In response to comments, several additional minor changes were made to the permit to clarify permit requirements.

Other Legal Requirements

A. State Certification

Under section 401(a)(1) of the Act, EPA may not issue an NPDES permit until the State in which the discharge will originate grants or waives certification to ensure compliance with appropriate requirements of the Act and State law. The Region received certification from the States of New Mexico, Oklahoma, and the Pueblos of Sandia and San Juan. The Pueblo of Isleta denied certification and the Pueblos of Acoma, Nambe, Picuris, Pojoaque, Santa Clara, and Tesuque waived certification.

B. Endangered Species Act

EPA Region 6 is currently engaged in consultation under section 7 of the Endangered Species Act with the U.S. Fish and Wildlife Service regarding this permit action. While EPA is issuing the permit at this time, EPA may decide that changes to the permit are warranted based on the results of the consultation when it is completed. A reopener provision to this effect has, therefore, been included in Part I.H of the permit.

C. Historic Preservation Act

Facilities which adversely affect properties listed or eligible for listing in the National Register of Historical Places are not authorized to discharge under this permit.

D. Economic Impact (Executive Order 12866)

Under Executive Order 12866 (58 FR 51735 (October 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 general permit is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to formal OMB review prior to proposal.

E. Paperwork Reduction Act

The information collection required by this permit has been approved by OMB 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).

F. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq, requires that EPA prepare a regulatory flexibility analysis for regulations that have a significant impact on a substantial number of small entities. As discussed below, the permit being proposed to be reissued is not a “rule” subject to the Regulatory Flexibility Act. EPA prepared a regulatory flexibility analysis, however, on the promulgation of the Coastal Subcategory guidelines on which many of the permit's effluent limitations are based. That analysis shows that compliance with the permit requirements will not result in a significant impact on dischargers, including small businesses, covered by these permits. EPA Region 6 therefore concludes that the permits proposed today will not have a significant impact on a substantial number of small entities.

G. 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)” (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 Clean Water Act (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.

EPA thinks it is unlikely that this proposed permit issuance would contain a Federal requirement that might 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 permit issuance would 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. The proposed permit issuance also would not uniquely affect small governments because compliance with the proposed permit conditions affects small governments in the same manner as any other entities seeking coverage under the permit.

Dated: July 2, 2002.

Miguel I. Flores,

Director, Water Quality Protection Division, EPA Region 6.