00-22523. 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.

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 [phone] or Jacques Landy at [phone]. 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 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 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. 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.