[Federal Register Volume 78, Number 3 (Friday, January 4, 2013)]
[Notices]
[Pages 730-732]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31715]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9767-1]


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

AGENCY: Environmental Protection Agency.

ACTION: Approval of Oklahoma Department of Agriculture, Food and 
Forestry's (ODAFF) Agricultural Pollutant Discharge Elimination System 
program under the Clean Water Act.

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SUMMARY: On December 20, 2012, the Regional Administrator for the 
Environmental Protection Agency, Region 6 (EPA) approved the request of 
the State of Oklahoma 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''). The AgPDES program 
will be administered by the Oklahoma Department of Agriculture, Food 
and Forestry (ODAFF) and is 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 ODAFF's jurisdiction.

DATES: Effective Date: Pursuant to 40 CFR 123.61(c), the AgPDES program 
was approved and became effective on December 20, 2012. As of the date 
of program approval, NPDES permitting authority for those discharges 
subject to the AgPDES program transferred from EPA to ODAFF.
    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 Administrative 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: http://www.epa.gov/region6/water/npdes/ok-daff/index.html A 
paper copy of part of all of the State's application or any other 
documents in the Administrative Record may be obtained from EPA Region 
6 in Dallas for a cost of .15 cents per page.

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. The Oklahoma discharges subject to regulation under the 
federal NPDES program and the AgPDES program administered by ODAFF are 
discharges associated with concentrated animal feeding operations 
(``CAFO''), discharges from the application of biological pesticides or 
chemical pesticides that leave a residue, discharges from silviculture 
activities, and discharges of storm water from agricultural activities. 
ODAFF does not have jurisdiction over all discharges within the State 
of Oklahoma. A large portion of the State's discharges are covered by 
the Oklahoma Department of Environmental Quality's (ODEQ's) approved 
NPDES program. EPA retains jurisdiction over discharges to Indian 
Country, as defined in 18 U.S.C. 1151, and over discharges under the 
jurisdiction of the Oklahoma Corporation Commission.
    On August 16, 2012, the Governor of Oklahoma requested NPDES major 
category partial permit program approval and submitted, in accordance 
with 40 CFR 123.21 a 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 determined that ODAFF's August 16th application for partial program 
approval, as amended September 7, 2012, was complete under 40 CFR 
123.21 and a letter of completeness was sent to ODAFF on September 14, 
2012. On September 24, 2012, notice of the State's application was 
published in the Federal Register (77 FR 58830), announcing a 45 day 
public comment period. Notice was also published in the Daily Oklahoman 
and Tulsa World newspapers on September 25, 2012. Both an informal 
public meeting and a public hearing were held in Oklahoma City, 
Oklahoma on October 25, 2012. The public meeting included a 
presentation on Oklahoma's request for AgPDES program approval and a 
question and answer session. Oral and written comments for the official 
record were accepted at the public hearing, which was held in 
accordance with 40 CFR 124.12.
    EPA was required to approve ODAFF's application within 90 days of 
submittal of a complete submission unless the submittal did not meet 
the requirements of Section 402(b) of the Act and EPA regulations, or 
EPA and ODAFF jointly agreed to extend this deadline. (See 40 CFR 
123.2l (d). By email dated December 4, 2012, EPA and ODAFF extended the 
statutory review period until December 20, 2012.
    To obtain program approval, ODAFF was required to 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.
    Authority to approve State programs is provided to EPA pursuant to 
Section 402(b) of the CWA. The regulatory requirements for state 
program approval are set forth in 40 CFR part 123. EPA's decision to 
approve the AgPDES program is based on the requirements of CWA Sec.  
402 and 40 CFR part 123. In making its decision, EPA considered all 
comments and issues raised during the public comment period, including 
those

[[Page 731]]

raised at the public hearing. A copy of the Region's responses to 
comments and ODAFF's program submittal documents are available on the 
EPA Region 6 Internet site: http://www.epa.gov/region6/water/npdes/ok-daff/index.html. The comments and public hearing record are contained 
in the administrative record supporting this notice.

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

A. Scope of the Partial Program

    The AgPDES program is a major category partial permit program in 
conformance with the requirements of Section 402(n)(3) of the CWA. The 
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 discharges associated with 
concentrated animal feeding operations (``CAFO''), discharges from the 
application of biological pesticides or chemical pesticides that leave 
a residue, 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 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 did not seek authority to regulate discharges to Indian 
Country, as defined in 18 U.S.C. 1151. EPA retains NPDES permitting 
authority over Indian Country in the State of Oklahoma.

B. Transfer of NPDES Authority and Pending Actions

    Authority for all NPDES permitting activities within the scope of 
ODAFF's jurisdiction have been transferred to the State. EPA retains 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 
also retains on a permanent basis independent enforcement authority to 
address civil and/or criminal CWA violations under Sec. Sec.  309 and 
402(i) of the Act and to file federal enforcement actions in those 
instances in which EPA determines the State has not taken timely or 
appropriate enforcement action.
    Pursuant to the MOA between EPA and ODAFF, ODAFF has taken over 
administration of EPA-issued general permits for those discharges under 
its jurisdiction while EPA retains administration of 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.
    The CAFO general permit OKG010000 (discharges from CAFOs) is being 
transferred to ODAFF with no discharges authorized by that permit 
remaining under EPA jurisdiction. OKR12000F (Construction General 
Permit--storm water discharges associated with industrial activity), 
OKR05000F (Multi-Sector General Permit--storm water associated with 
construction activities), and OKG87 
(Pesticides General Permit--discharges associated with application of 
pesticides to waters of the United States) are being partially 
transferred to ODAFF with EPA retaining the permits for discharges 
remaining under EPA jurisdiction. For general permits OKR05000F and 
OKR12000F, EPA will continue to administer the permit for discharges 
under the jurisdiction of the OCC. For general permit 
OKG87, EPA will continue to 
administer the permit for discharges to Indian Country. Descriptions of 
the scope of coverage in general permits 
OKG87, OKR05000F and OKR12000F are 
being changed to reflect the discharges still being permitted by EPA. 
ODAFF is modifying the permit scope of coverage, Notice of Intent, and 
reporting requirements to reflect their assumption of these permits for 
those discharges under the new AgPDES program.

Responsiveness Summary

    On September 24, 2012, notice of the State's application was 
published in the Federal Register (77 FR 58830), announcing a 45 day 
public comment period. EPA Region 6 has considered and prepared written 
responses to all comments received. In response to comments received 
and for the sake of clarification, several wording changes have been to 
the Memorandum of Agreement between EPA and ODAFF. A revision to Table 
3-1 of the Enforcement Management System, Chapter 3, has also been made 
for the sake of clarification. A copy of the Region's responses to 
comments and the program documents may be obtained from the EPA Region 
6 Internet site: http://www.epa.gov/region6/water/npdes/ok-daff/index.html Changes made to the MOA and to Table 3-1 of the Enforcement 
Management System as a

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result of comments are marked in redline/strikeout.
    I hereby provide public notice of EPA's approval of the State of 
Oklahoma's request for authorization for ODAFF 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: December 20, 2012.
Ron Curry,
Regional Administrator, EPA Region 6.
[FR Doc. 2012-31715 Filed 1-3-13; 8:45 am]
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