State Program Requirements; Application To Administer Partial National Pollutant Discharge Elimination Program; Oklahoma, 58830-58832 [2012-23489]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 185 (Monday, September 24, 2012)]
[Notices]
[Pages 58830-58832]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23489]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9731-4]


State Program Requirements; Application To Administer Partial 
National Pollutant Discharge Elimination Program; Oklahoma

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: The Oklahoma Department of Agriculture, Food and Forestry 
(ODAFF) has submitted to the Environmental Protection Agency (EPA) an 
application for authorization of the Agriculture Pollutant Discharge 
Elimination System (AgPDES) program pursuant to Section 402(b) of the 
Clean Water Act (CWA or ``the Act''). ODAFF seeks approval to 
administer a major category partial National Pollutant Discharge 
Elimination System (NPDES) permit program under Section 402(n)(3) of 
the Act for all discharges of pollutants into waters of the United 
States within its jurisdiction. Today, EPA is providing public notice 
of ODAFF's request for AgPDES program approval and of both a public 
hearing and public comment period on the State's program approval 
submission. EPA will either approve or disapprove authorization of the 
AgPDES program after considering all comments received.
    To View or Obtain Copies of Documents: Copies of ODAFF's program 
approval submission (referred to throughout this document as ODAFF's 
application) and all other documents in the official record are 
available for inspection from 9 a.m. to 4 p.m., Monday through Friday, 
excluding legal holidays, at EPA Region 6, 1445 Ross Ave., Dallas, 
Texas 75202.
    A copy of ODAFF's application is available online at the EPA Region 
6 Web page https://www.epa.gov/region6/water/npdes/ok-daff/. A 
paper copy of part of all of the State's application may be obtained 
from EPA Region 6 in Dallas for a cost of $0.15 per page.

DATES: The public comment period on the State's application will run 
from the date of publication until November 8, 2012. Comments may be 
submitted in paper or electronically and must be received or post-
marked no later than midnight on November 8, 2012. Both an informal 
public meeting and a public hearing will be held in Oklahoma City, 
Oklahoma on October 25, 2012. The public meeting will include a 
presentation on the AgPDES program approval request and a question and 
answer session. Written, but not oral, comments for the official record 
will be accepted at the public meeting. The public hearing will be 
conducted in accordance with 40 CFR 124.12 and will provide interested 
parties with the opportunity to provide written and/or oral comments 
for the official record. The public meeting will begin at 6 p.m. The 
public hearing will begin at 7 p.m. Both the public meeting and the 
public hearing will be held at the Metro Technology Centers, Springlake 
Campus/Business Conference Center, Auditorium, 1900 Springlake Drive, 
Oklahoma City, Oklahoma 73111.

ADDRESSES: Comments should be sent to: Ms. Diane Smith (6WQ-NP), U.S. 
Environmental Protection Agency,

[[Page 58831]]

Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. 
Comments may also be submitted via email to the following address: 
smith.diane@epa.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Denise Hamilton at the EPA address 
listed above or by calling (214) 665-2775, FAX (214) 665-2191, email: 
Hamilton.Denise@epa.gov.

SUPPLEMENTARY INFORMATION: Section 402 of the CWA created 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(b) requires EPA to authorize a State 
to administer an equivalent state program upon the Governor's request, 
provided the State has appropriate legal authority and a program 
sufficient to meet the Act's requirements. Major category partial 
permit program approval is provided for under section 402(n)(3) of the 
CWA. Pursuant to that Section, EPA may approve a partial permit program 
covering a major category of a State's discharges if the program 
represents a complete permit program and covers all of the discharges 
under the jurisdiction of the agency seeking approval, and if EPA 
determines that the partial program represents a significant and 
identifiable part of the State program required by Section 402(b) of 
the Act. However, ODAFF does not have jurisdiction over all discharges 
within the State of Oklahoma. A large portion of the State's discharges 
are within the jurisdiction of the Oklahoma Department of Environmental 
Quality (ODEQ) and other discharges are within the jurisdiction of the 
Oklahoma Corporation Commission.
    The regulatory requirements for state program approval are set 
forth in 40 CFR part 123. 40 CFR 123.21 lists the basic elements of an 
approvable application. EPA Region 6 considers the documents submitted 
by the State of Oklahoma administratively complete at the time of this 
document. EPA will make a final decision regarding AgPDES program 
approval after completion of a public hearing and public comment period 
on the State's application and after consideration of all public 
comments provided during the public comment period or at the public 
hearing.
    On August 16, 2012, the Governor of Oklahoma requested NPDES major 
category partial permit program approval and submitted, in accordance 
with 40 CFR Section 123.21 program description (including funding, 
personnel requirements and organization, and permit and enforcement 
procedures), a Statement of Legal Authority, copies of applicable State 
statutes and regulations, and a Memorandum of Agreement (MOA) to be 
executed by the Regional Administrator of EPA Region 6 and the 
Commissioner of Agriculture for ODAFF. ODAFF seeks permitting and 
enforcement authority for all discharges within its jurisdiction. At 
the request of EPA, ODAFF made revisions to several of the program 
submittal documents and the last of these revisions was received by EPA 
on September 7, 2012. EPA has determined that ODAFF's August 16th 
application for partial program approval, as amended September 7, 2012, 
constitutes a complete State program submission under 40 CFR 123.21. A 
letter of completeness was sent to ODAFF on September 13, 2012. EPA is 
required to approve ODAFF's application within 90 days of submittal of 
a complete submission unless the submittal does not meet the 
requirements of Section 402(b) of the Act and EPA regulations, or EPA 
and ODAFF jointly agree to extend this deadline. (See 40 CFR 
123.21(d)). To obtain such approval, ODAFF must show among other things 
that it has authority to issue permits that comply with the Act, 
authority to impose civil and criminal penalties for permit violations, 
and authority to ensure that the public is given notice and opportunity 
for a hearing on each proposed permit. After close of the comment 
period, the Regional Administrator for EPA Region 6 will make a 
decision to approve or disapprove the AgPDES program for implementation 
by the State. EPA's final decision to approve or disapprove the AgPDES 
program will be based on the requirements of Section 402 of the CWA and 
40 CFR part 123.
    If EPA approves the AgPDES program, the Regional Administrator will 
so notify the State and will sign the proposed MOA. Notice will be 
published in the Federal Register and, as of the date of program 
approval, EPA will transfer to ODAFF NPDES permitting authority and 
primary enforcement responsibility for those discharges subject to the 
AgPDES program. If EPA's Regional Administrator disapproves the AgPDES 
program, ODAFF will be notified of the reasons for disapproval and of 
any revisions or modifications to the program which are necessary to 
obtain approval.

Public Hearing Procedures

    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 
record.
    3. The Presiding Officer may in his discretion exclude oral 
testimony if such testimony is overly repetitious of previous testimony 
or is not relevant to the decision to approve or require revision of 
ODAFF's application.
    4. The transcript taken at the hearing, together with copies of all 
submitted statements and documents, shall become a part of the record 
submitted to the Regional Administrator.
    5. The hearing record will be left open until the deadline for 
receipt of comments specified at the beginning of this Notice to allow 
any person time to submit additional written statements or to present 
views or evidence tending to rebut testimony presented at the public 
hearing.
    6. Hearing statements may be oral or written. Written copies of 
oral statements are urged 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 
summarize their points rather than reading lengthy written comments 
verbatim into the record. All comments received by EPA Region 6 by the 
deadline for receipt of comments, or presented at the public hearing, 
will be considered by EPA before taking final action on ODAFF's request 
for AgPDES program approval.

Scope, Transfer of NPDES Authority, and Summary of the AgPDES Program 
Documents

A. Scope of the Partial Program

    The proposed AgPDES program is a major category partial permit 
program in conformance with the requirements of Section 402(n)(3) of 
the CWA. The proposed program is a complete permit program for all 
discharges under ODAFF's jurisdiction and represents a significant and 
identifiable part of the state program required by Sec.  402(b) of the 
CWA. The Oklahoma discharges subject to regulation under the federal 
NPDES program and the AgPDES program administered by ODAFF are point 
source discharges associated with concentrated animal feeding 
operations (``CAFO''), discharges from the application of biological 
pesticides or chemical pesticides that leave a residue,

[[Page 58832]]

discharges from silviculture activities, and discharges of storm water 
from agricultural activities.
    ODAFF has jurisdiction over all matters affecting agriculture that 
have not been expressly delegated to another state or federal agency, 
as set out in the Oklahoma Agriculture Code, and is responsible for 
fully implementing and enforcing the laws and rules within its 
jurisdictional areas of environmental responsibility. The Oklahoma 
Environmental Quality Act gives ODAFF environmental jurisdiction over 
point source discharges from agricultural crop production and 
agricultural services. It also gives the Agency environmental 
jurisdiction specific to the application of pesticides. ODAFF does not 
have jurisdiction over storm water discharges associated with 
industrial activity (as defined at 40 CFR 122.26(b)(14)) at facilities 
whose primary industrial activity is storage of grain, feed seed, 
fertilizer, and agriculture chemicals (e.g., SIC code 4121) and are 
thus required by federal regulations to have a storm water permit. 
However, ODAFF's jurisdiction includes all discharges at facilities 
regulated by ODAFF that only incidentally store grain, feed, seed, 
fertilizer, and agriculture chemicals to support the primary activity 
of the facility (e.g., feed storage at a CAFO). ODAFF has the necessary 
jurisdiction to regulate discharges resulting from agricultural and 
non-agricultural applications of pesticides; except for discharges from 
industrial processes, municipal treatment works, and municipal and 
industrial storm water, for which the Oklahoma Environmental Quality 
Act has expressly delegated jurisdiction to the Oklahoma Department of 
Environmental Quality (ODEQ). ODAFF also has jurisdiction to regulate 
discharges resulting from silvicultural discharges related to tree 
growing, planting management, log transport and log storage, and other 
activities, except those related to wood preservation and processing 
regulated pursuant to 40 CFR part 429 (Timber Products Processing) and 
part 436 (Mineral Mining and Processing), which are regulated by ODEQ.
    Activities that are not within ODAFF's environmental jurisdiction 
include commercial manufacturers of fertilizers, grain and feed 
products, and chemicals; manufacturing of food and kindred products, 
tobacco, paper, lumber, wood, textile mill and other agricultural 
products; slaughterhouses, except for feedlots at those facilities; and 
aquaculture and fish hatcheries. These exceptions to the Agency's 
jurisdiction include, but are not limited to, discharges of pollutants 
and storm water to waters of the state, surface impoundments and land 
application of wastes and sludge, and other pollution originating at 
these facilities.
    ODAFF is not seeking authority to regulate discharges to Indian 
Country, as defined in 18 U.S.C. 1151. EPA retains NPDES permitting 
authority and primary enforcement responsibility over Indian Country in 
the State of Oklahoma.

B. Transfer of NPDES Authority and Pending Actions

    Upon approval of the AgPDES program, authority for all NPDES 
permitting activities, as well as primary responsibility for NPDES 
enforcement activities, within the scope of ODAFF's jurisdiction, would 
be transferred to the State. EPA would retain on a permanent basis its 
authority under section 402(d) of the CWA to object to AgPDES permits 
proposed by ODAFF, and if the objections are not resolved, to issue 
federal NPDES permits for those discharges. EPA would also retain on a 
permanent basis its authority under sections 402(I) and 309 of the CWA 
to file federal enforcement actions in those instances in which EPA 
determines the State has not taken timely or appropriate enforcement 
action.
    Upon program authorization, ODAFF will take over administration and 
enforcement of EPA-issued general permits for those discharges under 
its jurisdiction while EPA will retain administration of the general 
permits for those discharges remaining under EPA jurisdiction. 
Dischargers remaining under EPA jurisdiction include those discharges 
to waters in Indian Country and those discharges under the jurisdiction 
of the Oklahoma Corporation Commission. The transfer of EPA-issued 
permits is described in Section IV.B of the MOA. A Table outlining 
jurisdiction over general permits after program authorization has been 
prepared and is available on EPA's Web site. This notice also serves as 
notice that the permits will be modified by EPA and ODAFF as necessary 
to reflect the transfer of jurisdiction pursuant to 40 CFR 123.1(d)(1) 
and 123.24(b)(1)(i).
    I hereby provide public notice of the application by the State of 
Oklahoma for approval to administer the AgPDES program for discharges 
into navigable waters within its jurisdiction in accordance with 
Section 402(b) of the CWA and 40 CFR part 123.

    Dated: September 13, 2012.
Samuel Coleman,
Acting Regional Administrator, EPA Region 6.
[FR Doc. 2012-23489 Filed 9-21-12; 8:45 am]
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