[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,
[email protected], 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
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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
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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]
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