30 TAC §§321.31-321.37, 321.39-321.42, 321.46, 321.47
The Texas Natural Resource Conservation Commission (Commission)
proposes amendments to §§321.31-321.37, 321.39-321.42, 321.46 and
new §321.47, concerning technical requirements and administrative procedures
relating to authorizations of concentrated animal feeding operations (CAFOs).
The purpose of these changes is to provide for State assumption of NPDES permitting
of CAFO facilities.
On September 14, 1998, the U.S. Environmental Protection Agency (EPA) authorized
Texas to implement its Texas Pollutant Discharge Elimination System (TPDES)
program. TPDES is the state program to carry out both the National Pollutant
Discharge Elimination System (NPDES), a federal regulatory program to control
discharges of pollutants to surface waters of the United States and the corresponding
state permitting program. As part of the TPDES program, Texas has assumed
responsibility for authorization of Concentrated Animal Feeding Operations
(CAFO) facilities.
The current Subchapter B CAFO rules were adopted by the commission on August
19, 1998 and became effective on September 18, 1998. TNRCC's current authorizations
by rule for CAFOs are state- only authorizations. The purpose of the proposed
rules is to implement NPDES assumption and to make the existing rules consistent
with federal regulations. As amended, this subchapter will allow the TNRCC
to administer a single permitting program for NPDES and state permits and
provide CAFOs the opportunity to apply for just one permit to gain both state
and federal coverage.
The commission has taken into consideration the following state and federal
actions in proposing these amendments to Subchapter B:
(1) EPA Region VI General Permit for CAFOs (March, 1993), which establishes
the currently effective technical and procedural requirements for CAFOs to
meet in order to maintain federal authorization to discharge under the National
Pollutant Discharge Elimination System (NPDES).
(2) Proposed EPA Region VI NPDES General Permit for CAFOs (1998), which
proposes requirements for permit coverage for CAFOs that discharge or have
a potential to discharge process wastewater into waters of the United States.
(3) Section 26.040 of the Texas Water Code, under which Subchapter B was
originally adopted and which directed that the commission may by rule regulate
and set requirements and conditions for discharges of waste whenever the commission
determines that requiring individual permits is unnecessarily burdensome both
to the waste discharger and to the commission.
(4) House Bill 1542, 75th Texas Legislature (1997), which amended §26.040
of the Texas Water Code. This bill specifies that all current rules adopted
by the TNRCC under §26.040 as it read prior to the effective date of
the HB 1542 remain in effect, as they may be amended by the commission from
time to time as appropriate, and provides that the commission's authority
for subsequent amendments or modifications is not affected by the changes
made by the bill.
(5) Proposed EPA Region VI NPDES General Permit for CAFOs Located in Impaired
Watersheds (1998), which proposes additional requirements for permit coverage
for CAFOs and others that discharge or have a potential to discharge process
wastewater into watershed impaired by CAFO- related activities.
(6) NPDES Memorandum of Agreement between the TNRCC and EPA Region VI (September
14, 1998), which establishes policies, responsibilities, and program commitments
for assumption of the NPDES program by the TNRCC.
(7) Federal NPDES Regulations contained in 40 Code of Federal Regulations
(CFR) Parts 122, and 412.
EXPLANATION OF PROPOSED RULE
Proposed changes to §321.31, Waste and Wastewater Discharge and Air
Emission Limitations, deletes the term "disposed" in order to clarify that
disposal of CAFO waste or wastewater in not authorized by Subchapter B. Rather,
the land application of manure and wastewater to cropland may be authorized
at levels that do not exceed agronomic rates.
Proposed changes to §321.32, Definitions, includes adding swine weighing
under 55 pounds within the definitions for "animal unit" and "CAFO" based
on comments received on the previous proposed version of this rule. Also,
the definition for "CAFO general permit" is being modified to accomplish the
consistency between state and federal programs.
Proposed changes to §321.33, Applicability, provide that any facility
holding authorizations from both the TNRCC and EPA shall continue to operate
under the terms of these authorizations until the NPDES authorization expires.
As part of NPDES assumption, TNRCC adopted the EPA's 1993 CAFO general permit,
which will remain in effect as TPDES authorization for those facilities with
NOIs filed with EPA and approved prior to March 10, 1998. That permit will
cease to be effective when EPA issues a replacement general permit. At that
time facilities that were operating under the expired EPA issued general permit
must obtain TPDES authorization from TNRCC. Within sixty days of such expiration,
a facility shall apply for authorization under this amended subchapter and
shall continue to operate the facility under the terms of the expired authorization
until final disposition of the application.
Any facility that holds an authorization from the TNRCC and that is not
required to obtain NPDES authorization shall continue to operate under the
terms of their existing TNRCC authorization until expiration, amendment or
termination. All such TNRCC authorizations shall expire five years from the
effective date of these rules, unless such authorization specifies a different
expiration date.
Any facility that holds an authorization from the TNRCC and that is required,
but does not hold, a current NPDES authorization, shall file an application
under this subchapter within 60 days of the effective date these rules failure
to timely submit an application may result in enforcement proceedings.
Any facility with an unexpired authorization under Chapter 321, and which
is not required to obtain NPDES authorization, may request a transfer of its
authorization to a registration under this subchapter if a written request
is submitted on forms approved by the executive director and the facility
operates in accordance with the provisions of this subchapter. Those holding
unexpired authorizations under Subchapter K are not excluded from this transfer
provision. Subchapter K was declared invalid, and six specific Subchapter
K registrations were canceled by judgment of a State District Court earlier
this year. This judgment is currently on appeal. This proposal provides an
optional vehicle for facilities with unexpired Subchapter K authorizations
not specifically nullified by judicial order to transfer to Subchapter B.
The proposed changes would also clarify that an owner/operator holding
a current authorization is required to obtain an amendment prior to any increase
in the number of animals authorized for confinement or to making any modification
to the facility which would cause a substantial change to the site plan or
in the buffer distance determination. Nonsubstantial modifications are described
that may be made to the site plan or the Pollution Prevention Plan (PPP) without
prior authorization from the commission. This list of nonsubstantial modifications
is descriptive rather than exclusive, and staff intends to provide further
elaboration by published guidance, if necessary.
Proposed changes to §321.34, Procedures for Making Application for
an Individual Permit, adds an amendment procedure for individual permits.
In addition, all applications for permit renewal must be administratively
and technically complete and meet all applicable technical requirements of
this subchapter.
Proposed changes to §321.35, Procedures for Making Application for
Registration, would include requiring that all applications for permit renewal
must be administratively and technically complete and meet all applicable
technical requirements of this subchapter. The application procedures for
registrations were changed to clarify the existing amendment process and to
allow the Executive Director to determine which Pollution Prevention Plan
components are necessary in an application. Finally, the term "disposal" is
proposed to be replaced by the term "land application" in order to clarify
that disposal of CAFO waste or wastewater in not authorized by Subchapter
B.
The proposed change to §321.36, Notice of Application for Registration,
includes the replacement of the term "disposal" with the term "land application"
in order to clarify that disposal of CAFO waste or wastewater is not authorized
by Subchapter B.
Proposed changes to §321.37, Action on Applications for Registration,
requires the executive director to consider any written comments on any applications
for registration received within 30 days of mailing the notice.
Proposed changes to §321.39, Pollution Prevention Plans, would establish
new requirements for land application of waste or wastewater. Some of the
components that must be addressed in the PPP include: a site map showing the
location of any land application areas; a description of waste handling procedures
and equipment availability; the calculations and assumptions used for determining
land application rates; and all nutrient analysis data.
Also, the proposed changes would require that when an annual soil sampling
analysis for extractable phosphorus indicates a level greater than 200 parts
per million (reported as P) in Zone 1 for a particular waste and/or wastewater
land application field, the operator cannot apply wastewater to the affected
application area unless the land application is implemented in accordance
with a detailed nutrient utilization plan developed by NRCS, or by any professional
agronomist or soil scientist.
In addition, the term "disposal" was replaced with the term "land application"
in order to clarify that disposal of CAFO waste or wastewater is not authorized
by Subchapter B.
Proposed changes to §321.40, Best Management Practices, replace the
term "disposal" with the term "land application" in order to clarify that
disposal of CAFO waste or wastewater is not authorized by Subchapter B.
Proposed changes to §321.41, Other Requirements, reference the definition
for CAFOs in §321.32(9)(B) and replaces the term "disposal" with the
term "land application" in order to clarify that disposal of CAFO waste or
wastewater is not authorized by Subchapter B.
Proposed changes to §321.42, Monitoring and Reporting Requirements,
require that when control of a land application area changes, the operator
must file an application to amend the existing authorization to reflect an
alternate method for beneficially utilizing the waste or wastewater or to
add new or additional land application areas to the authorization. Also, changes
are proposed to require an operator to retain copies on-site of all records
required by this subchapter and to make them available to the executive director
upon request.
Proposed changes to §321.46, Air Standard Permit Authorization for
a CAFO General Permit, provide that an air quality standard permit may be
obtained in conjunction with a water quality application. If no water quality
application is pending, a separate written request may be submitted which
demonstrates compliance with all the requirements in this subchapter.
Proposed new §321.47, Initial Texas Pollutant Discharge Elimination
System (TPDES) Authorization, establishes procedures under which an existing
facility may submit written notice that it will operate as required under
this amended subchapter as an authorized TPDES facility for the remainder
of unexpired term of its current authorization. Upon expiration of the term
of the facility's current authorization, the owner/operator shall file for
an Individual Permit or Registration.
FISCAL NOTE
Matthew Johnson, Financial Administration, has determined that for each
year of the first five- year period the sections as proposed are in effect,
there will be fiscal implications as a result of administration or enforcement
of the sections. The effect on state government is projected to be a slight
increase in renewal application fee revenue from facilities currently holding
perpetual permits and a slight increase in amendment fee revenue amending
existing authorizations. Under the current rule, the fee to renew a CAFO permit
is $315.00 and the fee to amend a CAFO permit is $350.00. The state is not
expected to have an increase in operating costs because the amended rules
will not result in additional cost to issue permits and registrations. There
will be no anticipated effects for local governments because local governments
will not be enforcing this rule.
The amended rule as proposed will require owner/operators intending to
increase the number of animals at their facility to obtain an amendment to
their existing authorization. The proposed sections will also require amendments
for facility modifications that would cause a substantial change to the site
plan or buffer determination. Such owner/operators would incur the cost of
developing an amendment as well as any amendment fees. Under the current rule,
the fee to amend a CAFO permit is $350.00. The amended rule as proposed will
also will change the maximum term of these permits to five years and require
a relatively small number of owner/operators whose TNRCC CAFO permits are
perpetual to renew their permits. Under the current rule, the fee to renew
a CAFO permit is $315.00. The proposed rule is not expected to adversely affect
small business. Under the proposed sections, some CAFO owner/operators, including
some who may be small businesses, may be required to file amendments or renewals
to their existing CAFO permits. However, the regulatory fees of $315.00 or
$350.00 for renewals or amendments are not estimated to be significant new
costs where applicable. In general, CAFO owner/operators, including small
businesses, are expected to realize significant time and cost savings as a
result of implementing the delegated NPDES program, which allows permitting
by and reporting to one regulatory entity instead of two.
PUBLIC BENEFIT
For the first five-year period the sections as proposed are in effect,
the public benefit anticipated as a result of enforcement and compliance with
the sections will be further implementation of the delegated NPDES program.
Specifically, with NPDES delegation to Texas, the CAFO community is now regulated
primarily by one entity (the TNRCC) instead of two (TNRCC and EPA). Regulated
CAFO's are expected to realize time and cost savings by reporting to and receiving
permits from only one governmental entity.
REGULATORY IMPACT ANALYSIS
The commission has reviewed the proposed rulemaking in light of the regulatory
analysis requirement of Texas Government Code §2001.0225 and has determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in the act,
and it does not meet any of the four applicability requirements listed in
§2001.0225(a). The proposed rule amendment, which is intended to protect
the environment and reduce risks to human health, will not have a material
adverse affect on the economy or sector of the economy, productivity, competition,
jobs, the environment or the public health and safety of the state or a sector
of the state. The proposed rule amendment will not have a material adverse
affect on the economy or a sector of the economy, productivity, and jobs because
the rule changes will allow the TNRCC to fulfill the requirements of TPDES
assumption thereby eliminating the need to obtain separate federal and state
authorization for operating a CAFO in Texas. The proposed rule amendment will
not have a material adverse affect on the environment or the public health
and safety of the state or a sector of the state because the rule changes
will not make any of the technical requirements for operating a CAFO less
stringent.
TAKINGS IMPACT ANALYSIS
The commission has prepared a Takings Impact Assessment for these rules
pursuant to Texas Government Code Annotated, §2007.043. The following
is a summary of that Assessment. The specific purpose of the Subchapter B
rule amendments is to allow the TNRCC to fully implement the NPDES CAFO program
in Texas by making the existing Subchapter B rules consistent with the EPA
Region 6 CAFO general permit requirements. The rule changes will also allow
the TNRCC to fulfill the requirements of TPDES assumption and to administer
one permitting program for both NPDES and state permits. This action will
not burden private real property that is the subject of the regulation because
the amended rules will enable the TNRCC to fully implement the NPDES program
for CAFOs in Texas and thereby eliminate the need to obtain separate federal
and state authorization for operating a CAFO.
PUBLIC HEARING
A public hearing on the proposal will be held February 16, 1999 at 10:00
a.m. in Room 2210 of the Commission Building F, located at 12100 Park 35 Circle,
Austin. The hearing is structured to receive oral or written comments by interested
persons. Individuals may present oral statements, when called upon, in the
order of registration. Open discussion will not occur during the hearing;
however, a commission staff member will be available to discuss the proposal
30 minutes prior to the hearing and will answer questions before and after
the hearing.
PUBLIC COMMENTS
Written comments on the proposal should refer to Rule Log No. 98074-321-WT
and may be submitted to Heather Evans, Texas Natural Resource Conservation
Commission, Office of Policy and Regulatory Development, MC 205, P.O. Box
13087, Austin, Texas 78711-3087, (512) 239-4640. Comments may be faxed to
(512) 239-5687, but must be followed up with the submission and receipt of
the written comments within three working days of when they were faxed. Written
comments must be received by 5:00 p.m., February 16, 1999. For further information
concerning this proposal, please contact Darrell Williams, Texas Natural Resource
Conservation Commission, Water Quality Division, (512) 239-5768.
COASTAL MANAGEMENT PLAN
Under 31 TAC §505.11 permits for a new CAFO within one mile of a coastal
natural resource area (CNRA) must be consistent with the applicable goals
and polices of the CMP contained in Chapter 501, Subchapter B of Title 31.
These proposed rules would specifically require CAFOs within one mile of a
CNRA to obtain an individual permit for the specific purpose of ensuring consistency
with applicable CMP goals and policies.
Preliminary Consistency Determination: The commission has performed a preliminary
consistency determination for the proposed rules pursuant to 31 TAC §505.22
and has found the proposed rulemaking is consistent with the applicable CMP
goals and policies. The following is a summary of that determination. CMP
goals applicable to the proposed rule include the protection, restoration
and enhancement of the diversity, quality, quantity, functions and values
of Coastal Natural Resource Areas (CNRA) and to ensure sound management of
all coastal resources by allowing for compatible economic development and
multiple human uses of the coastal zone. CMP policies applicable to the proposed
rule include the following: 1) discharges in the coastal zone shall comply
with water- quality-based effluent limits; 2) discharges in the coastal zone
that increase pollutant loadings to coastal waters shall not impair designated
uses of coastal waters and shall not significantly degrade coastal water quality
unless necessary for important economic or social development; and 3) to the
greatest extent practicable, new wastewater outfalls shall be located where
they will not adversely affect critical areas. Promulgation and enforcement
of these rules will not violate (exceed) any standards identified in the applicable
CMP goals and policies because these rules require that any new proposed CAFO
located within one mile of a CNRA obtain an individual permit. This will allow
the commission to consider the effects of such a facility on the CNRA, establish
effluent limits, if necessary, on any discharges from the proposed facility
to maintain applicable water quality standards and allow opportunity for notice,
public comment and public hearing.
STATUTORY AUTHORITY
The amendments are proposed under the Texas Water Code, §26.040, under
which the commission has authority to amend rules adopted under §26.040
prior to its amendment by H.B. 1542 in 1997, and §5.102, which provides
the commission with the authority to carry out duties and general powers of
the commission under its jurisdictional authority as provided by Texas Water
Code §5.103. These amendments are also proposed under §§26.028(c)
and 26.041 of the Texas Water Code and §§382.011, 382.017, and 382.051
of the Texas Health and Safety Code.
There are no other codes, statutes, or rules that will be affected by this
proposal.
§321.31.Waste and Wastewater Discharge and Air Emission Limitations.
(a)
It is the policy of the Texas Natural Resource Conservation
Commission that there shall be no discharge or disposal of waste and/or wastewater
from animal feeding operations into or adjacent to waters in the state, except
in accordance with subsection (b) of this section, any individual permits
issued
or adopted by the commission
[
under this subchapter
] prior to the effective date of these rules, [
any
] CAFO
general
permit
[
permits
], or §305.1 of this title
(relating to Scope and Applicability). Waste and[
/or
] wastewater
generated by a concentrated animal feeding operation under this subchapter
shall be retained and utilized [
or disposed of
] in an appropriate
and beneficial manner as provided by commission rules, orders, registrations,
authorizations, CAFO general permits or individual permits.
(b)
Wastewater may be discharged to waters in the state whenever
rainfall events, either chronic or catastrophic, cause an overflow of process
wastewater from a facility designed, constructed and operated to contain process
generated wastewaters plus the runoff (storm water) from a 25-year, 24- hour
rainfall event for the location of the [
point source (
]facility
authorized under this subchapter[
)
]. There shall be no effluent
limitations on discharges from retention structures constructed and maintained
to contain the 25-year, 24-hour storm event if the discharge is the result
of a rainfall event which exceeds the design capacity and the retention structure
has been properly maintained. Retention structures shall be designed in accordance
with §321.39 of this title (relating to Pollution Prevention Plans).
(c)
(No change.)
§321.32.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise:
(1)
Agronomic rates - The land application of animal wastes
and/or wastewater at rates of application which
will enhance soil productivity
and
provide the crop or forage growth with needed nutrients for optimum
health and growth.
(2)
(No change.)
(3)
Animal feeding operation - A lot or facility (other
than an aquatic animal production facility) where animals have been, are,
or will be stabled or confined and fed or maintained for a total of 45 days
or more in any 12-month period, and the animal confinement areas do not sustain
crops, vegetation, forage growth, or post harvest residues in the normal growing
season. Two or more animal feeding operations under common ownership are a
single animal feeding operation if they adjoin each other, or if they use
a common area or system for the
beneficial use
[
disposal
]
of wastes.
(4)
Animal unit - A unit of measurement for any animal
feeding operation calculated by adding the following numbers: the number of
slaughter and feeder cattle and dairy heifers multiplied by 1.0, plus the
number of mature dairy cattle multiplied by 1.4, plus the number of swine
weighing over 55 pounds multiplied by 0.4,
plus the number of swine weighing
55 pounds or less multiplied by 0.1,
plus the number of sheep multiplied
by 0.1, plus the number of horses/mules multiplied by 2.0.
(5)
(No change.)
(6)
Best Management Practices ("BMPs") - The schedules
of activities, prohibitions of practices, maintenance procedures, and other
management and conservation practices to prevent or reduce the pollution of
waters in the state. Best Management Practices also include treatment requirements,
operating procedures, and practices to control site runoff, spillage or leaks,
sludge
,
[
or
]
land application
[
waste
disposal
], or drainage from raw material storage.
(7)
CAFO general permit - A general permit issued
or adopted
by the commission in accordance with
Chapter 26 of the
Texas Water Code[
, §26.040
] for the express purpose
to regulate discharges from concentrated animal feeding operations on a statewide
or geographic basis.
(8)
(No change.)
(9)
Concentrated animal feeding operation ("CAFO") - Any
animal feeding operation which the executive director designates as a significant
contributor of pollution or any animal feeding operation defined as follows:
(A)
Any new and existing operations which stable and confine
and feed or maintain for a total of 45 days or more in any 12-month period
more than the numbers of animals specified in any of the following categories:
(i)-(ii)
(No change.)
(iii)
2500 swine weighing over 55 pounds
or 10,000 swine
weighing 55 pounds or less
;
(iv)-(x)
(No change.)
(B)
Any new and existing operations covered under this subchapter
which discharge pollutants into waters in the state either through a man-made
ditch, flushing system, or other similar man-made device, or directly into
the waters in the state, and which stable or confine and feed or maintain
for a total of 45 days or more in any 12-month period more than the numbers
or types of animals in the following categories:
(i)-(ii)
(No change.)
(iii)
750 swine weighing over 55 pounds
or 3,000 swine
weighing 55 pounds or less
;
(iv)-(x)
(No change.)
(C)
Poultry facilities that have no discharge to waters in
the state normally are not considered a concentrated animal feeding operation.
However, poultry facilities that use a liquid waste handling system or stockpile
litter near watercourses or dispose of litter on land such that stormwater
runoff [
or flooding
] will be transported into surface water or
groundwater may be considered a concentrated animal feeding operation. For
the purposes of air quality, the term CAFO, as used in this subchapter, includes
any associated feed handling and/or feed milling operations located on the
same site as the CAFO.
(10)
Control facility - Any system used for the retention
of wastes on the premises until their ultimate
beneficial use or
disposal. This includes the collection and retention of manure, liquid waste,
process wastewater and runoff from the feedlot area.
(11)-(20)
(No change.)
(21)
New concentrated animal feeding operation - A concentrated
animal feeding operation which was not authorized under a rule, order or permit
of the commission in effect at the time of the adoption of these amended rules
(
1999
[
1998
]).
(22)-(38)
(No change.)
§321.33.Applicability.
(a)
Any CAFO operating under currently effective authorizations
granted under state law only by the TNRCC or under federal law by EPA prior
to the effective date of these amended rules (1999) shall do one of the following:
[
A CAFO operating under a currently valid authorization granted
prior to the effective date of these amended rules shall continue to be authorized
and regulated in accordance with the terms of its existing authorization.
Any application that has been determined administratively complete prior to
the effective date of these amendments will be reviewed and issued under the
provisions of the rules in effect at the time the application was declared
administratively complete. Any application for permit renewal, amendment or
transfer for any permit issued under this subchapter prior to the effective
date of these rules shall be reviewed and/or issued under the provisions of
§321.34 of this title (relating to Procedures for Making Application
for an Individual Permit).
]
(1)
Any facility holding both such
authorizations shall continue to operate under the terms of both until the
NPDES authorization expires. Within sixty days of expiration of the existing
NPDES authorization, the facility owner/operator shall apply for authorization
under this amended subchapter (1999) in accordance with the provisions of
either §321.34 or §321.35 of this title (relating to Procedures
for Making Application for an Individual Permit or Procedures for Making Application
for Registration). If such application is filed and is administrative and
technically complete within the sixty day period, the applicant shall continue
to operate the facility under the terms of the expired authorization until
final disposition of the application in accordance with this subchapter.
(2)
Any facility holding only
an authorization from the TNRCC and which is not required under federal law
to obtain NPDES authorization shall continue to operate under the terms of
its existing TNRCC authorization until expiration, amendment or termination.
All such TNRCC authorizations shall expire five years from the effective date
of the amendments (1999) to these rules, unless such authorization specifies
an earlier expiration date.
(3)
Any facility holding an
authorization from the TNRCC under state law only and which under federal
law is required to, but does not, hold a current NPDES authorization, shall
file an application in accordance with provisions of this subchapter within
sixty days of the effective date of these amended (1999) rules.
(b)-(e)
(No change.)
(f)
Any existing, new or expanding CAFO which is neither authorized
by a CAFO general permit in accordance with the notice of intent requirements
of
such
[
the
] general permit or authorized pursuant
to subsections (a) or (b) of this section and which is designed to stable
or confine and feed or maintain for a total of 45 days or more in any 12-month
period more than the numbers of animals specified in the definition of CAFO
in §321.32(9)(A) of this title (relating to Definitions) shall apply
for registration in accordance with §321.35 of this title (relating to
Procedures for Making Application for Registration) or individual permit in
accordance with §321.34 of this title.
(g)
Any existing, new or expanding animal feeding operation
which is neither authorized by a CAFO general permit in accordance with the
notice of intent requirements of
such
[
the
] general
permit nor authorized pursuant to subsections (a) or (b) of this section,
which is located in areas specified in the definition of Dairy Outreach Program
Areas in §321.32 of this title, and which is designed to stable or confine
and feed or maintain for a total of 45 days or more in any 12-month period
more than the number of animals specified in the definition of CAFO in §321.32(9)(B)
of this title, but less than or equal to the number of animals specified in
the definition of CAFO in §321.32(9)(A) of this title shall apply for
registration in accordance with §321.35 of this title or individual permit
in accordance with §321.34 of this title.
(h)-(i)
(No change.)
(j)
Any CAFO which has existing authority under the Texas Clean
Air Act (TCAA) does not have to meet the air quality criteria of this subchapter.
Upon request, pursuant to the TCAA, §382.051, any CAFO which
files
an application, meets the requirements of §321.46 of this title (relating
to Air Standard Permit Authorization) and obtains approval of such application
in accordance with the provisions
[
meets all of the requirements
] of this subchapter is hereby entitled to an air quality standard permit
authorization under this subchapter in lieu of the requirement to obtain an
air quality permit under Chapter 116 of this title (relating to Control of
Air Pollution by Permits for New Construction or Modification). Those CAFOs
which would otherwise be required to obtain an air quality permit under Chapter
116 of this title, which cannot satisfy all of the requirements of this subchapter
shall apply for and obtain an air quality permit pursuant to Chapter 116 of
this title in addition to any authorization required under this subchapter.
Those animal feeding operations which are not required to obtain authorization
under this subchapter may be subject to requirements under Chapter 116 of
this title. Any change in conditions such that a person is no longer eligible
for authorization under this section requires authorization under Chapter
116 of this title. No person may concurrently hold an air quality permit issued
under Chapter 116 of this title and an authorization with air quality provisions
under this subchapter for the same site. Any application for a permit renewal,
amendment or transfer for any permit issued under the TCAA shall be reviewed
and/or issued under the provisions of Chapter 116 of this title.
(k)
(No change.)
(l)
By written request to the executive director, the owner/operator
of any facility [
authorized by the commission
] may request a transfer
of
its
authorization from an individual permit
granted by
the commission to a
[
to an application for
] registration.
Such transfer shall be processed in accordance with the provisions of §§321.35-321.37
of this title (relating to Procedures for Making Application for Registration,
Notice of Application for Registration and Actions on Applications for Registration).
If approved, such transfer under this subsection shall include all special
conditions/provisions from the existing
individual
permit, and
in addition, shall not impose any additional conditions or other requirements
unless there is substantial modification to the facility constituting a major
amendment as defined by §305.62 of this title (relating to Amendment)
or to address compliance problems with the facility or its operations in accordance
with a commission order or amendment. If approved, transfer of authorization
under this subsection will require compliance with the appropriate provisions
of §§321.38-321.42 of this title (relating to Proper CAFO Operation
and Maintenance, Pollution Prevention Plans, Best Management Practices, Other
Requirements, and Monitoring and Reporting Requirements). If approved, such
transfer shall not require any changes to existing structural measures which
are documented to meet design and construction standards in effect at the
time of installation.
(m)
No person may concurrently hold
both
an individual
permit or approved registration under this subchapter and an authorization
under a CAFO general permit in accordance with the notice of intent requirements
of the general permit for the same site.
(n)
(No change.)
(o)
By written request to the executive director, the owner/operator
of any facility
described in §321.33(a)(2) of this title (relating
to Applicability) and
holding an unexpired authorization granted under
Subchapter K of this chapter (relating to Concentrated Animal Feeding Operations)
may request a transfer of their authorization to a registration under this
subchapter.
Such written request shall be on the same form as required
under §321.47 of this title (relating to Initial TPDES Authorization)
and such continued authorization shall be in accordance with the terms of
§321.47 of this title.
A Subchapter K authorization that has been
specifically set aside by court order shall not be eligible for transfer under
this subsection. [
Such request shall include:
]
[
(1)
the name and address of the
applicant(s);]
[
(2)
the TNRCC identification
number the Subchapter K authorization to be transferred;]
[
(3)
any change that has occurred
in the information contained in the application upon which the Subchapter
K authorization was granted;]
[
(4)
the names and addresses
of the potentially affected landowners required to be identified on the final
site plan that would be required under §321.35 of this title (relating
to Procedures for Making Application for Registration);]
[
(5)
certification that the
facility is not the subject of an unexpired final enforcement order or of
an unresolved TNRCC enforcement action in which the executive director has
issued written notice that enforcement has been initiated; ]
[
(6)
the signatures and certifications
of the applicant(s) as provided in §§305.43 and 305.44 of this title
(relating to Who Applies and Signatories to Applications); and]
[
(7)
the application fee required
under §321.35(d) of this title.]
(p)
Any owner/operator holding a current authorization
issued at any time under this subchapter shall obtain an amendment pursuant
to §321.34 of this title (relating to Procedures for Making Application
for an Individual Permit) or §321.35 of this title (relating to Procedures
for Making Application for Registration) prior to any increase in the number
of animals authorized for confinement or to making any modification to the
facility which would cause a substantial change to the site plan or in the
buffer distance determination as specified in §321.46 of this title (relating
to Air Standard Permit Authorization). Nonsubstantial modifications may be
made to the site plan or the PPP submitted with the approved application without
prior authorization from the commission. Nonsubstantial modifications do not
include any that would result in an increase in the number of animals confined,
a change in the required buffer zone or lagoon capacity, a change boundaries
of the site plan or a violation of any management practice or physical or
operational requirement of this subchapter.
[
Within five working
days of receipt of a complete and accurate request, the executive director
shall prepare a notice of the receipt of the request that is suitable for
mailing and forward that notice, together with a copy of the request, to the
chief clerk. The notice shall include a statement that the request for transfer
will be granted by the executive director unless within 30 days after the
date the notice is mailed, the chief clerk receives a written objection from
a person described in §321.36(e) of this title (relating to Notice of
Application for Registration). The chief clerk shall transmit the notice and
a copy of the request to the persons and in the manner described in §321.36(e)
of this title. If no such objection is timely received, the executive director
shall approve the transfer. If the transfer is disapproved, and not withdrawn
by the applicant, the request for transfer shall be processed under §§321.35-321.37
of this title (relating to Procedures for Making Application for Registration,
Notice of Application for Registration and Actions on Applications for Registration).
If the request is approved either as a transfer or as a new registration under
§§321.35-321.37 of this title, such authorization will require compliance
with the provisions of §§321.38-321.42 of this title (relating to
Proper CAFO Operation and Maintenance, Pollution Prevention Plans, Best Management
Practices, Other Requirements, and Monitoring and Reporting Requirements),
except that no changes shall be required to existing structural measures which
are documented to meet design and construction standards in effect at the
time of installation or to any buffer zone requirement satisfied under the
prior Subchapter K authorization.
]
§321.34.Procedures for Making Application for an Individual Permit.
(a)
A CAFO that was not authorized under a rule, order or permit
issued or adopted by
[
of
] the commission
and
in
effect at the time of the adoption of these amended rules
(1999)
shall apply for an individual permit in accordance with the provisions of
this section or shall apply for [
an application for
] registration
in accordance with the provisions of §321.35 of this title (relating
to Procedures for Making Application for Registration). Application for an
individual permit shall be made on forms provided by the executive director.
The applicant shall provide such additional information in support of the
application as may be necessary for an adequate technical review of the application.
At a minimum, the application shall demonstrate compliance with the technical
requirements set forth in §321.38-321.42 of this title (relating to Proper
CAFO Operation and Maintenance, Pollution Prevention Plan, Best Management
Practices, Other Requirements and Monitoring and Reporting Requirements) and
shall demonstrate compliance with the requirements specified in §321.35(c)(1)-(13)
of this title (relating to Procedures for Making Application for Registration).
Applicants shall comply with §§305.41, 305.43-305.44 and 305.46-305.47
of this title (relating to Applicability; Who Applies; Signatories to Applications;
Designation of Material as Confidential and Retention of Application Data).
Each applicant shall pay an application fee as required by §305.53 of
this title (relating to Application Fees). An annual waste treatment inspection
fee is also required of each permittee as required by §305.503 and §305.504
of this title (relating to Fee Assessments and Fee Payments). An annual Clean
Rivers Program fees is also required as required under §220.21(d) of
this title (relating to Water Quality Assessment Fees). Except as provided
in subsections (b)-(e) of this section, each permittee shall comply with §§305.61
and 305.63
-305.68 of this title (relating to Applicability, [
Amendment,
] Renewal, Transfer of Permits, Permit Denial, Suspension and Revocation;
Revocation and Suspension Upon Request or Consent; and Action and Notice on
Petition for Revocation or Suspension). Each permittee shall comply with §305.125
of this title (relating to Standard Permit Conditions). Individual permits
granted under this subchapter shall be effective for a term not to exceed
five years. To qualify for the air quality standard permit, the applicant
must meet the requirements in §321.46 of this title (relating to Air
Standard Permit Authorization).
(b)
All applications for permit renewal must be administratively
and technically complete, meet all applicable technical requirements of this
subchapter and be in accordance with one of the following
[
Permit
renewal will be according to the following procedure
]:
(1)
An application to renew
an individual
[
a
] permit for an animal feeding operation which was issued between July
1, 1974, and December 31, 1977, may be renewed by the commission at a regular
meeting without holding a public hearing if the applicant does not seek to
discharge into or adjacent to waters in the state and does not seek to change
materially the pattern or place of
land application
[
disposal
].
(2)
Except as provided by §305.63(3) of this title
(relating to Renewals), an application for a renewal of
an individual
[
a
] permit
for a facility as described in §321.33(a)(2)
of this title (related to Applicability)
may be granted by the executive
director without public notice if it does not propose any change which constitutes
a major amendment as defined in Chapter 305 of this title or a major source
as defined under Chapter 116 of this title. Renewal under this paragraph shall
be allowed only if there has been no related formal enforcement action against
the facility during the last 36 months of the term of the permit in which
the commission has determined that:
(A)
a violation occurred that contributed to pollution of surface
or ground water, or an unauthorized discharge has occurred, or a violation
of §101.4 of this title (relating to Nuisance) has occurred or any violation
of an applicable state or federal air quality control requirement has occurred;
and
(B)-(C)
(No change.)
(3)
If the application
for renewal cannot meet all of the criteria in this subsection, then an application
for renewal shall be filed in accordance with subsection (a) of this section.
(c)-(d)
(No change.)
[(e)
If the application for renewal cannot
meet all of the criteria in subsection (b) of this section, then an application
for renewal shall be filed in accordance with subsection (a) of this section.]
(e)
[
(f)
] Any permittee with an issued
and effective
individual
permit shall submit an application for
renewal at least 180 days before the expiration date of the effective permit,
unless permission for a later date has been granted by the executive director.
The executive director shall provide the permittee notice of deadline for
the application for renewal at least 240 days before the permit expiration
date. The executive director shall not grant permission for applications to
be submitted later than the expiration date of the existing permit.
(f)
[
(g)
] Notice provided by the executive
director under subsection
(e)
[
(f)
] of this section
shall be sent by certified mail, return receipt requested.
(g)
[
(h)
] A facility owner/operator
shall submit a complete application within 90 days of notification from the
executive director that an individual permit is required.
(h)
[
(i)
] If an application [
for
renewal
] requests
an
[
a major
] amendment, as defined
by
§321.33 (p)
[
305.62
] of this title (relating
to
Applicability
[
Amendment
]), of the existing individual
permit, an application shall be filed
and processed as set out
in [
accordance with subsection (a) of
] this section.
(i)
[
(j)
] If a renewal application has
been filed before the individual permit expiration date, the existing individual
permit will remain in full force and effect and will not expire until action
on the application for renewal is final.
§321.35.Procedures for Making Application for Registration.
(a)
A CAFO that was not authorized under a rule, order or permit
of the commission in effect at the time of the adoption of these amended rules
shall apply for and receive registration under this section or shall apply
for an individual permit in accordance with the provisions of §321.34
of this title (relating to Procedures for Making Application for an Individual
Permit). A person who requests a registration [
or an amendment, modification,
] or renewal of such registration granted under this subchapter
, or an amendment as defined in §321.33(p) of this title (relating to
Applicability),
shall submit a complete and accurate application to
the executive director, according to the provisions of this section.
(b)
(No change.)
(c)
Application for registration under this section shall be
made on forms prescribed by the executive director. The applicant shall submit
an original completed application with attachments
and one copy of the
application with attachments
to the executive director at the headquarters
in Austin, Texas, and one additional copy of the application with attachments
to the appropriate Texas Natural Resource Conservation Commission regional
office. The completed application shall be submitted to the executive director
signed and notarized and with the following information:
(1)-(4)
(No change.)
(5)
A proposed [
final
] site plan for the facility
showing the boundaries of land owned, operated or controlled by the applicant
and to be used as a part of a CAFO, the locations of all pens, lots, ponds,
on-site and off-site
land application
[
disposal
] areas,
and any other types of control or retention facilities, and all adjacent landowners
within 500 feet of the property line of all tracts containing facilities and
all on-site or off-site
land application
[
waste disposal
]
areas, including their name[
,
]
and
address [
and
telephone number
]. As used in this subchapter, the term "
land application
[
disposal
] area" does not apply to any lands not owned,
operated or controlled by the CAFO operator for the purpose of off-site land
application of manure, wherein the manure is given or sold to others for
land application
[
beneficial use
].
(6)-(7)
(No change.)
(8)
Sections of the pollution prevention plan designated
by the executive director
[
A copy of the pollution prevention plan
for the CAFO
] for which the application is filed. Prior to utilization
of wastewater retention facilities, documentation of liner certifications
by a licensed professional engineer must be submitted (if applicable).
(9)-(10)
(No change.)
(11)
Where the applicant can not document the absence
of recharge features on the tracts for which an application is being filed,
the proposed [
final
] site plan shall also indicate the specific
location of any and all recharge features found on any property owned, operated
or controlled by the applicant under the application as certified by a NRCS
engineer, licensed professional engineer, or qualified groundwater scientist.
The applicant shall also submit a plan, developed by a NRCS engineer or licensed
professional engineer, to prevent impacts on any located recharge feature
and associated groundwater formation which may include the following:
(A)
Installation of the necessary and appropriate protective
measures for each located recharge feature such as impervious cover, berms
or other equivalent protective measures covering all affected facilities and
land application
[
disposal
] areas; or
(B)
Submission of a detailed groundwater monitoring plan covering
all affected facilities and
land application
[
disposal
]
areas. At a minimum, the ground-water monitoring plan shall specify procedures
to annually collect a ground-water sample from representative wells, have
each sample analyzed for chlorides, nitrates and total dissolved solids and
compare those values with background values for each well; or
(C)
(No change.)
(12)-(13)
(No change.)
(d)-(g)
(No change.)
(h)
An application for renewal
[
Renewal
]
of a registration under this section
must be administratively and technically
complete, meet all applicable technical requirements of this subchapter and
[
will
] be according to the following procedures:
(1)
Except as provided by §305.63(3) of this title (relating
to Renewals), an
administratively and technically complete
application
for a renewal of a registration
for a facility described in §321.33(a)(2)
of this title (relating to Applicability)
may be granted by the executive
director without public notice if it does not propose any other change to
the registration as approved. Renewal under this paragraph shall be allowed
only if there has been no related formal enforcement action against the facility
during the last 36 months of the term of the registration in which the commission
has determined that:
(A)-(C)
(No change.)
(2)-(5)
(No change.)
§321.36.Notice of Application for Registration.
(a)
Administrative and Technical Review.
(1)
(No change.)
(2)
Within five working days of declaration of administrative
completeness, the executive director shall assign the application a number
for identification purposes, and prepare a statement of the receipt of the
application and declaration of administrative and technical completeness which
is suitable for publishing or mailing, under the requirements of
subsection
(c) of this section
, [
§321.186(b) of this title (relating
to Notice of Application)
] and shall forward that statement to the applicant.
(b)
Notice of application. The notice of application for registration
and administrative/ technical completeness shall contain the following information:
(1)-(4)
(No change.)
(5)
a brief summary of the information included in the
application for registration, including but not limited to the general location
of facilities and
land application
[
disposal
] areas
associated with the application, the proposed size of the facility, a description
of the receiving water for any discharge and the location where a copy of
the application for registration may be reviewed by interested persons;
(6)-(7)
(No change.)
(c)-(d)
(No change.)
(e)
Notice by mail.
(1)
(No change.)
(2)
the notice shall be mailed by the chief clerk to the
following:
(A)
the potentially affected landowners named on the [
final
] site plan submitted with the application;
(B)-(J)
(No change.)
(3)-(4)
(No change.)
§321.37.Actions on Applications for Registration.
(a)
Public Comment on Applications for Registrations. A person
may provide the commission with written comments on any applications for registration
for which notice has been issued under this subchapter. The executive director
shall review any written comments [
when they are
] received within
30 days of mailing the notice. Only written comments received within the 30
day period
must
[
will
] be considered. The written information
received will be utilized by the executive director in determining what action
to take on the application for registration, pursuant to subsection (b) of
this section.
(b)
The executive director shall determine, after review of
any application for registration, if he will approve or deny an application
for registration in whole or in part, deny with prejudice, suspend the authority
to conduct an activity for a specified period of time, or
condition approval
upon amendment
[
amend
] or
modification of
[
modify
] the proposed activity requested by the applicant. The determination
of the executive director shall include review and action on any new applications
or changes, renewals, and requests for [
major
] amendment of any
existing
registration
[
application
]. In
considering
[
consideration of such
] an application for registration,
the executive director will consider all relevant requirements of this subchapter
and consider all information pertaining to those requirements
timely
received by the executive director regarding the application for registration.
The written determination on any application for registration, including any
authorization granted, shall be mailed by the Office of Chief Clerk to the
applicant upon the decision of the executive director. At the same time the
executive director's decision is mailed to the applicant, a copy or copies
of this decision shall also be mailed by the Office of Chief Clerk to all
persons who timely submitted written information on the application, as described
in subsection (a) of this section. The written determination of the executive
director shall include a response to all significant comments received
during the 30-day comment period
.
(c)
Motion for reconsideration. The applicant or any person
submitting comments in accordance with subsection (a) of this section may
file with the chief clerk a motion for reconsideration, under the procedures
of §50.39(b)-(f) of this title (relating to Motion for Reconsideration),
of the executive director's final approval of an application. Any person who
was entitled to but not given proper notice of an application and
who
subsequently did not submit comments within the 30 day comment period
may file a motion for reconsideration.
§321.39.Pollution Prevention Plans.
(a)-(e)
(No change.)
(f)
The plan shall include, at a minimum, the following items:
(1)
Each plan shall provide a description of potential pollutant
sources. Potential pollutant sources include any activity or material that
may reasonably be expected to add pollutants to waters in the state from the
facility. An evaluation of potential pollutant sources shall identify the
types of pollutant sources, provide a description of the pollutant sources,
and indicate all measures that will be used to prevent contamination from
the pollutant sources. The type of pollutant sources found at any particular
site varies depending upon a number of factors including site location, historical
land use, proposed facility type,
land application
[
waste
disposal
] practices, etc. The evaluation shall encompass all land that
will be used as part of the CAFO as indicated in the site plan. Each potential
pollutant source must be identified in the plan. A thorough site inspection
of the facility is recommended to ensure that all sources have been identified.
Potential pollutant sources found at CAFO facilities include, but are not
limited to, the following: manure; sludge; wastewater; dust; silage stockpiles;
fuel storage tanks; pesticide storage and applications; lubricants; disposal
of any dead animals associated with production at the CAFO; land application
of waste and wastewater; manure stockpiling; pond clean-out; vehicle traffic;
and pen clean-out. Each plan shall include:
(A)-(B)
(No change.)
(C)
A list of any significant spills of these materials at
the facility after the effective date
(1999)
of these rules, or
for new facilities, since date of operation.
(D)
(No change.)
(2)-(7)
(No change.)
(8)
Evaporation systems shall be designed to withstand
a 10-year (consecutive) period of maximum recorded monthly rainfall (other
than catastrophic), as determined by a hydrologic needs analysis (water balance),
and sufficient freeboard (not less than
two feet
[
one foot
]) shall be maintained to dispose of rainfall and rainfall runoff from
the 25-year, 24-hour rainfall event without overflow. In the hydrologic needs
analysis determination, any month in which a catastrophic event occurs the
analysis shall replace such an event with not less than the long term average
rainfall for that month.
(9)-(18)
(No change.)
(19)
Retention facilities shall be equipped with either
irrigation or evaporation systems capable of dewatering the retention facilities,
or a regular schedule of wastewater removal by contract hauler. The pollution
prevention plan must include all calculations, as well as, all factors used
in determining land application rates, acreage, and crops. Land application
rates must take into account the nutrient contribution of any land applied
manures. If land application is utilized, [
for disposal of wastewater,
] the following requirements shall apply:
(A)
(No change.)
(B)
When [
irrigation disposal of
] wastewater is
used
to irrigate land application areas, the plan shall include: a description
of waste handling procedures and equipment availability; the calculations
and assumptions used for determining land application rates; and all nutrient
analysis data. Application
[
application
] rates shall not
exceed the nutrient uptake of the crop coverage or planned crop planting with
any land application of wastewater and/or manure. Land application rates of
wastewaters shall be based on the available nitrogen content, however, where
annual soil sampling analysis for extractable phosphorus as described in paragraph
(28)(F) of this subsection indicates a level greater than 200 ppm of extractable
phosphorus (reported as P) in Zone 1 for a particular waste and/or wastewater
land application field , the operator may apply wastewater to the affected
application area only in accordance with the conditions established in paragraph
(28)(G) of this subsection
[
local water quality is threatened by
phosphorus, the operator shall limit the application rate to the recommended
rates of available phosphorus for crop uptake, based upon crop and realistic
yield goals, and provide controls for runoff and erosion as appropriate for
site conditions.
]
(C)-(H)
(No change.)
(I)
The pollution prevention plan
shall include the following information:
(i)
a site map showing the location of any land
application areas, either on-site or off-site which are owned, operated or
under the control of the facility owner/operator which will be utilized for
land application of waste and/or wastewater;
(ii)
the location and description of the major soil
types within the identified land application areas;
(iii)
crop types and rotations to be implemented
on an annual basis;
(iv)
predicted yield goals based on the major soil
types within the identified land application areas;
(v)
procedures for calculating nutrient budgets
to be used to determine application rates;
(vi)
a detailed description of the type of equipment
and method of application to be used in applying the waste and/or wastewater;
(vii)
projected rates and timing of application
of the manure and wastewater as well as other sources of nutrients that will
be applied to the land application areas.
(J)
The owner/operator shall maintain
on-site and update records of all waste and wastewater either utilized at
the facility or removed from the facility.
(i)
For facilities where waste or wastewater is
applied on property owned, operated or controlled by the owner/operator, such
records shall include the following information: date of waste and/or wastewater
application; location of the specific application site and the number of acres
utilized during each application event; acreage of each individual crop on
which waste and/or wastewater is applied; number of dry tons, percent nitrogen
based on a dry basis, and the percent moisture content of the manure; and
actual annual yield of each harvested crop.
(ii)
Where waste or wastewater is removed from the
facility, records must be maintained in accordance with paragraph (23) of
this subsection.
(20)-(21)
(No change.)
(22)
Where the operator decides to land apply manures
or
[
and
] pond solids the plan shall include: a description
of waste handling procedures and equipment availability; the calculations
and assumptions used for determining land application rates; and all nutrient
analysis data. Land application rates of wastes
shall
[
should
] be based on the available nitrogen content of the solid waste
, except
[
.
]
however
[
However
], where
annual soil sampling analysis for extractable phosphorus as described in paragraph
(28)(F) of this subsection indicates a level greater than 200 ppm of extractable
phosphorus (reported as P) in Zone 1 for a particular waste and/or wastewater
land application field , the operator may apply solid waste to the affected
application area only in accordance with the conditions established in paragraph
(28)(G) of this subsection
[
local water quality is threatened
by phosphorus, the application rate shall be limited to the recommended rates
of available phosphorus for crop uptake, based upon crop and realistic yield
goals, and provide controls for runoff and erosion as appropriate for site
conditions
].
(23)
If [
the waste
] [
(
]manure[
)
] is sold or given to other persons for
off-site land application
or
disposal, the operator must maintain a log of: date of removal from
the CAFO; name of hauler; and amount, in wet tons, dry tons or cubic yards,
of waste removed from the CAFO. (Incidental amounts, given away by the pick-up
truck load, need not be recorded.) Where the wastes are to be land applied
by the hauler, the operator must make available to the hauler any nutrient
sample analysis of the manure from that year.
(24)
The procedures documented in the pollution prevention
plan must ensure that the handling and
land application
[
disposal
] of wastes as defined in §321.32 of this title (relating
to Definitions) comply with the following requirements:
(A)
Manure storage capacity based upon manure and waste production
and land availability shall be provided. Storage and/or surface
application
[
disposal
] of manure in the 100-year flood plain, near water
courses or recharge feature is prohibited unless protected by adequate berms
or other structures. The land application of wastes at agronomic rates shall
not be considered surface disposal in this case and is not prohibited.
(B)-(C)
(No change.)
(D)
Manure shall be
uniformly
applied to suitable
land at appropriate times and at agronomic rates. Discharge (run-off) of waste
from the application site is prohibited. Timing and rate of applications shall
be in response to crop needs, assuming usual nutrient losses, expected precipitation
and soil conditions.
(E)-(G)
(No change.)
(H)
Nighttime application of liquid and/or solid waste shall
[
only
] be allowed
only
in areas with no occupied residence(s)
within 0.25 mile from the outer boundary of the actual area receiving waste
application. In areas with an occupied residence within 0.25 mile from the
outer boundary of the actual area receiving waste application, application
shall only be allowed from one hour after sunrise until one hour before sunset,
unless the current occupants of such residences have in writing agreed to
such nighttime applications.
(I)-(L)
(No change.)
(25)-(27)
(No change.)
(28)
Prior to commencing wastewater irrigation and/or
waste application on land owned or operated by the operator, and annually
thereafter, the operator shall collect and analyze representative soil samples
of the wastewater and waste application sites according to the following procedures:
(A)-(D)
(No change.)
(E)
Soil samples shall be submitted to a soil testing laboratory
along with a previous crop history of the site, intended crop use and yield
goal. Soil
test
reports shall include nutrient recommendations
for the crop yield goal.
(F)
(No change.)
(G)
When results of the annual soil analysis for extractable
phosphorus in subparagraph (F) of this paragraph indicates a level greater
than 200 ppm of extractable phosphorus (reported as P) in Zone 1 for a particular
waste and/or wastewater
land application
[
disposal
]
field or if ordered by the commission to do so in order to protect the quality
of waters in the state, then the operator shall
not apply any
[
limit
] waste and/or wastewater
to the affected area unless the
waste and/or wastewater application is implemented in accordance with a detailed
nutrient utilization plan developed by NRCS, or any professional agronomist
or soil scientist certified by the American Society of Agronomy (ASA) or who
is an active member of ASA holding a Masters or Doctorate degrees from an
accredited US institution in areas such as soil fertility, soil chemistry,
soil conservation, agricultural engineering, soil environmental science, soil
management or a closely related area and such plan is approved by the executive
director. No land application under an approved nutrient utilization plan
shall cause or contribute to a violation of water quality standards or create
a nuisance.
[
application on that site to the recommended P rates
based on crop uptake. Waste and/or wastewater application shall remain limited
to recommended P rates until soil analysis indicates extractable phosphorus
levels have been reduced below 200 ppm P, or to a lower level as ordered by
the commission.
]
(29)-(31)
(No change.)
§321.40.Best Management Practices.
The following Best Management Practices (BMPs) shall be utilized by
concentrated animal feeding operations owners/ operators, as appropriate,
based upon existing physical and economic conditions, opportunities and constraints.
Where the provisions in a NRCS plan are equivalent or more protective the
operator may refer to the NRCS plan as documentation of compliance with the
BMPs required by this subchapter.
(1)-(6)
(No change.)
(7)
There shall be no water quality impairment to public
and neighboring private drinking water wells due to waste handling at the
permitted facility. Facility wastewater retention facilities, holding pens
or waste/wastewater
land application
[
disposal
] sites
shall not be located closer than 500 feet of a public water supply well or
150
feet
of a private water
well
[
wells, except
in accordance with Chapter 238 of this title (relating to Water Well Drillers)
].
(8)-(11)
(No change.)
(12)
Collection, storage, and
land application
[
disposal
] of liquid and solid waste shall be managed in accordance
with recognized practices of good agricultural management. The economic benefits
derived from agricultural operations carried out at the land
application
[
disposal
] site shall be secondary to the proper
application
[
disposal
] of waste and wastewater.
(13)
(No change.)
§321.41.Other Requirements.
(a)
Education and Training.
(1)
Any CAFO owner/operator with greater than
the number
of animals specified in §321.32 (9)(B)of this title (relating to Definitions)
[
300 animal units
] and located within an area specified
in the definition of Dairy Outreach Program Areas in §321.32 of this
title (relating to Definitions) shall obtain authorization under this subchapter
and, within twelve months of receiving such authorization, the owner/operator
or his designee with operational responsibilities shall complete an eight
hour course or its equivalent on animal waste management. In addition, that
owner/operator shall also complete at least eight additional hours of continuing
animal waste management education for each two year period after the first
twelve months. The minimum criteria for the initial eight hours and the subsequent
eight hours of continuing animal waste management education shall be developed
by the executive director and the Texas Agricultural Extension Service. Verification
of the date and time(s) of attendance and completion of required training
shall be documented to the pollution prevention plan.
(2)
Where the employees are responsible for work activities
which relate to compliance with provisions of this subchapter, those employees
must be regularly trained or informed of any information pertinent to the
proper operation and maintenance of the facility and
land application
of
waste [
disposal
]. Employee training shall inform personnel
at all levels of responsibility of the general components and goals of the
pollution prevention plan. Training shall include topics as appropriate such
as land application of wastes, proper operation and maintenance of the facility,
good housekeeping and material management practices, necessary recordkeeping
requirements, and spill response and clean up. The operator is responsible
for determining the appropriate training frequency for different levels of
personnel and the pollution prevention plan shall identify periodic dates
for such training.
(b)-(f)
(No change.)
§321.42.Monitoring and Reporting Requirements.
(a)
If, for any reason[
,
] there is a discharge to
waters in the state, the operator
shall
[
is required to
]
notify the executive director orally within 24 hours and in writing within
14 working days of the discharge from the retention facility or any component
of the waste handling or
land application
[
disposal
]
system. In addition, the operator shall document the following information
to the pollution prevention plan within 14 days of becoming aware of such
discharge:
(1)-(7)
(No change.)
(b)-(c)
(No change.)
(d)
The operator shall retain copies
on-site
[
of
] all records required by this subchapter for a period of at least
three years from the date reported
or received, and shall make them available
to the executive director upon request
. This period may be extended
by request of the executive director at any time.
(e)-(g)
(No change.)
(h)
The operator shall maintain ownership, operation or control
over the retention facilities,
land application
[
disposal
] areas and control facilities identified in the [
final
]
site plan submitted with the application under §321.34 or 321.35 of this
title (relating to Procedures for Making Application for an Individual Permit
or Procedures for Making Application for Registration). In the event owner
loses ownership, operation or control of any of these areas, the operator
shall notify the executive director prior to such loss of control and immediately
request and file an application to amend the existing authorization
to reflect an alternate method for beneficially utilizing the waste or wastewater
or to add new or additional land application areas to the authorization
, an application for a new authorization under this subchapter or present
the executive director with a plan to cease all concentrated animal feeding
operations at that site.
(i)
Any operator required to obtain authorization under §321.33
of this title (relating to Applicability) shall locate and maintain all facilities
in accordance with the [
final
] site plan submitted with the application
as required under §321.34 or 321.35 of this title (relating to Procedures
for Making Application for an Individual Permit or Procedures for Making Application
for Registration). In the event the operator does not properly locate and
maintain such facilities in accordance with the [
final
] site plan
and the provisions of §321.33(p) of this title (relating to Applicability)
they shall be deemed in noncompliance with the provisions of this subchapter.
(j)
Operator shall furnish to the executive director soil testing
laboratory results of all soil samples within 60 days of the date the samples
were taken in accordance with the requirements of this
subchapter
[
subsection
].
§321.46.Air Standard Permit Authorization.
Pursuant to Texas Clean Air Act §382.051, any CAFO which meets
all of the requirements for registration or individual permit outlined in
this subchapter or all the requirements for operating under a CAFO general
permit and which satisfy this section is hereby entitled to an air quality
standard permit authorization in lieu of the requirement to obtain an air
quality permit under Chapter 116 of this title (relating to Control of Air
Pollution by Permits for New Construction or Modification). Facilities which
meet all the "Air Quality Only" requirements in §321.39 of this title
(relating to Pollution Prevention Plans) and obtain either a registration
or individual permit or a CAFO general permit are eligible for an air quality
standard permit.
The air quality standard permit may be obtained in conjunction
with a water quality application. If no water quality application is pending,
a separate request may be submitted in writing which demonstrates compliance
with all the requirements in this subchapter.
In addition to meeting
the "Air Quality Only" requirements, the applicant must also demonstrate compliance
with the following:
(1)-(2)
(No change.)
§321.47.Initial Texas Pollutant Discharge Elimination System (TPDES) Authorization.
In lieu of the procedure specified in §321.33 of this title (relating
to Applicability), the owner/operator of any existing facility as described
in §321.33(a) of this title may submit to the executive director written
notice that they will operate the facility in accordance with the provisions
of this subchapter. Such notice shall be on forms approved by the executive
director and submitted within 45 days of the effective date of these amended
(1999) rules. A facility for which a complete and accurate written notice
has been submitted in accordance with this section may operate as an authorized
TPDES facility under this amended subchapter for the remainder of unexpired
term of their current authorization. Upon expiration of the specified term
of the facility's current authorization , the owner/operator shall file for
renewal in accordance with either §321.34 or §321.35 of this title
(relating to Procedures for Making Application for an Individual Permit or
Procedures for Making Application for Registration). If the existing authorization
contains any special conditions or provisions, the owner/operator shall operate
such facility in accordance with the provisions of this subchapter and any
additional special provisions or conditions specified in the authorization.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December
28, 1998.
TRD-9818563
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: February 16, 1999
For further information, please call: (512) 239-4640