Section 321.42 - Requirements Applicable to the Major Sole-Source Impairment Zone(a) The purpose of this section is to describe certain requirements for individual water quality permits for dairy concentrated animal feeding operations (CAFOs) or other authorizations allowed by this subchapter when an operation is located in a major sole-source impairment zone. Additionally, subsection (i) of this section applies to any dairy animal feeding operation (AFO), including any dairy CAFO, which is located in a major sole-source impairment zone.(b) The dairy CAFO operator must adhere to provisions of this section and the other requirements contained in this subchapter. When a requirement of this section conflicts with another requirement of this subchapter, the requirement of this section shall supercede the other requirement.(c) The dairy CAFO operator must operate and maintain a margin of safety in the retention control structure (RCS) to contain the volume: (1) of runoff and direct precipitation from the 25-year, ten-day rainfall event; or(2) necessary to prevent overflow resulting from a statistically determined probability of overflow resulting in a discharge frequency of no more than once in 25 years. The margin of safety using this method must be evaluated using the Soil Plant Air and Water (SPAW) Field and Pond Hydrology Tool and be certified by a Texas licensed professional engineer.(d) The dairy CAFO is only authorized to discharge from a properly operated and maintained RCS when the volume of the rainfall runoff and direct precipitation exceed the volume for the margin of safety that must be maintained in the RCS.(e) If construction of new or modified RCSs is necessary to comply with subsections (c) and (d) of this section, a permit or other authorization will specify a schedule for compliance.(f) The dairy operator shall install and maintain a permanent pond marker (measuring device) in the RCS visible from the top of the levee to show the following:(1) the volume for the margin of safety; and(2) one-foot increments beginning from the predetermined minimum treatment volume of the RCS to the top of the embankment or spillway.(g) The dairy operator shall implement an RCS management plan incorporating the margin of safety developed by a licensed Texas professional engineer. The management plan shall become a component of the pollution prevention plan (PPP), shall be developed for the RCS system, and must describe or include: (1) RCS management controls appropriate for the CAFO and the methods and procedures for implementing such controls;(2) the methods and procedures for proper operation and maintenance of the RCS consistent with the system design;(3) the appropriateness and priorities of any controls reflecting the identified sources of pollutants at the facility;(4) a stage/storage table for each RCS with minimum depth increments of one-foot, including the storage volume provided at each depth;(5) a second table or sketch that includes increments of water level ranges for volumes of total design storage, including the storage volume provided at each specified depth (or water level) and the type of storage designated by that depth; and(6) the planned end of month storage volume anticipated for each RCS for each month of the year and the corresponding operating depth expected at the end of each month of the year, based on the design assumptions.(h) The dairy operator shall monitor and record wastewater levels daily in the RCS. A log shall be kept in the PPP to document the level of wastewater observed each day. In circumstances where the RCS has a water level exceeding the expected end of the month depth, the operator shall document in the PPP why the level of water in the structure is not at or below the expected depth.(i) The dairy operator shall provide for management and disposal of waste as specified in Texas Water Code, § 26.503, in accordance with the following:(1) beneficially used outside of the watershed;(2) disposed in landfills outside of the watershed, subject to the requirements of commission rules relating to industrial solid waste;(3) delivered to a composting facility approved by the executive director;(4) put to another beneficial use approved by the executive director; or(5) applied in any of the following ways: (A) in accordance with a nutrient management plan (NMP) certified in accordance with Natural Resources Conservation Service (NRCS) Code 590 Practice Standard to a waste application field that is owned, operated, controlled, rented, or leased by the owner of the CAFO, if the field is not a historical waste application field, as defined in § 321.32 of this title (relating to Definitions);(B) in accordance with an NMP certified in accordance with NRCS Code 590 Practice standard to a historical waste application field that is owned, operated, controlled, rented, or leased by the owner or operator of the CAFO, if results of representative composite soil sampling conducted at the waste application field and submitted to the executive director show that the waste application field contains 200 or fewer parts per million (ppm) of extractable phosphorus (reported as P) in the Zone 1 (zero to six inches) depth; or(C) in accordance with a detailed nutrient utilization plan (NUP) approved by the executive director which, at a minimum, meets the requirements of § 321.40(k)(3) of this title (relating to Concentrated Animal Feeding Operation (CAFO) Land Application Requirements), to a historical waste application field that is owned, operated, controlled, rented, or leased by the owner or operator of the CAFO, if results of representative composite soil sampling conducted at the waste application field and submitted to the executive director show that the waste application field contains greater than 200 ppm of extractable phosphorus (reported as P) in the Zone 1 (zero to six inches) depth.(j) Permits for existing dairy CAFOs in the major sole-source impairment zone in accordance with subsection (i) of this section may allow the operator to provide manure, litter, and wastewater to operators of third-party fields, i.e., areas of land not owned, operated, controlled, rented, or leased by an AFO owner or operator, that have been identified in the PPP. The dairy operator will be subject to enforcement action for violations of the land application requirements on any third-party field under contract. The permit provision must, at a minimum, include the following requirements:(1) there must be a written contract between the dairy operator and the recipient that requires all transferred manure, litter, and wastewater to be beneficially applied to third-party fields identified in the PPP in accordance with the applicable requirements in § 321.36 of this title (relating to Texas Pollutant Discharge Elimination System Requirements for Concentrated Animal Feeding Operations (CAFOs) and § 321.40 of this title at an agronomic rate based on soil test phosphorus;(2) the permit must prohibit the dairy operator from delivering manure, litter, or wastewater to an operator of a third-party field once the soil test phosphorus analysis shows a level equal to or greater than 200 ppm or after becoming aware that the third-party operator is not following § 321.36 of this title and § 321.40 of this title and the contract;(3) third-party fields identified in the PPP on which manure, litter, or wastewater have been applied during the preceding year must be sampled annually by a nutrient management specialist and the samples analyzed in accordance with § 321.36(g) of this title; and(4) the dairy operator shall submit records to the appropriate regional office quarterly that contain the name, locations, and amounts of manure, litter, or wastewater transferred to operators of third-party fields.(k) The dairy operator must contract with the NRCS, a certified nutrient management specialist, the Texas State Soil and Water Conservation Board, the Texas Cooperative Extension, or an agronomist or soil scientist on full-time staff at an accredited university located in the State of Texas to collect one or more representative composite soil samples from each LMU including any historical waste application fields, not less than once every 12 months.(l) The dairy operator shall notify the appropriate regional office in writing or by electronic mail with the date, time, and location at least ten working days before collecting soil samples.(m) The dairy operator shall ensure that soil samples are analyzed in accordance with the procedures and laboratory analysis requirements in § 321.36(g) of this title (relating to Texas Pollutant Discharge Elimination System General Requirements for Concentrated Animal Feeding Operations (CAFOs)). The dairy CAFO operator shall furnish to the appropriate regional office and the commission's Office of Compliance and Enforcement, Enforcement Division, soil testing analysis of all soil samples within 60 days of the date the samples were taken in accordance with the requirements of this subchapter.(n) If the samples tested under subsection (m) of this section show a phosphorus level in the soil of more than 500 ppm in Zone 1 (zero to six inches) depth, the operator shall file with the executive director a new or amended NUP with a phosphorus reduction component based on crop removal that is certified as acceptable by a person described in § 321.40(k)(3) of this title.(o) If the samples tested under subsection (m) of this section show a phosphorus level in the soil of more than 200 ppm but not more than 500 ppm in Zone 1 (zero to six inches) depth, the operator shall:(1) file with the executive director a new or amended NUP with a phosphorus reduction component based on crop removal that is certified as acceptable by a person described in § 321.40(k)(3) of this title; or(2) show that the level is supported by a NUP that is certified as acceptable by a person described under § 321.40(k)(3) of this title.(p) If the owner or operator of a waste application field is required by this section to have a NUP with a phosphorus reduction component based on crop removal, and if the results of tests performed on composite soil samples collected 12 months or more after the plan is filed do not show a reduction in phosphorus concentration in Zone 1 (zero to six inches) depth, then the owner or operator is subject to enforcement action at the discretion of the executive director. The executive director, in determining whether to take an enforcement action, shall consider any explanation presented by the owner or operator regarding the reasons for the lack of phosphorus reduction, including, but not limited to, an act of God, meteorologic conditions, diseases, vermin, crop conditions, or variability of soil testing results.(q) The dairy operator shall inspect the irrigation system to prevent discharges. If a discharge from an irrigation system within the major sole-source impairment zone is documented as a violation, then the CAFO operator shall, if required by the executive director, install an automatic emergency shutdown or alarm system to notify the operator of system problems.(r) The dairy operators are prohibited from land application of manure, litter, or wastewater in a major sole-source impairment zone between midnight and 4 a.m.(s) All dairy CAFOs in a major sole-source impairment zone shall develop and operate under a comprehensive nutrient management plan (CNMP) certified by the Texas State Soil and Water Conservation Board. This CNMP shall be implemented not later than December 31, 2006.(t) In addition to the requirements of § 321.44 of this title (relating to Concentrated Animal Feeding Operation (CAFO) Notification Requirements), a dairy CAFO operator in a major sole-source impairment zone must comply with this subsection. In the event of a discharge from the RCS or LMU during a chronic or catastrophic rainfall event or resulting from catastrophic conditions, the dairy CAFO operator shall orally notify the appropriate regional office within one hour of the discovery of the discharge. The operator shall send written notification to the appropriate regional office within 14 working days.(u) Any dairy CAFO operator to whom this section applies who has an unauthorized discharge from the RCS and who used the SPAW certification method for the margin of safety shall, within 90 days of written notification by the executive director, develop and implement the capacity for a 25-year, ten-day margin of safety. Upon written request, the executive director may grant a variance from the 90-day time requirement.(v) Any dairy CAFO operator to whom this section applies shall, in the event of a discharge from an RCS or LMU, submit a report to the appropriate regional office showing the facility records that substantiates that the overflow was a result of cumulative rainfall that exceeded the volume of storage capacity and margin of safety without the opportunity for dewatering, and was beyond the control of the operator. After review of the report, if required by the executive director, the operator shall have an engineering evaluation by a licensed Texas professional engineer developed and submitted to the executive director. This requirement is in addition to the discharge notification requirement in this subchapter.(w) For additional protection in the major sole-source impairment zone, dairy CAFO operators who utilize LMUs must:(1) adhere to the vegetative buffer required by § 321.40(h) of this title;(2) install and maintain a filter strip or vegetative barrier, according to NRCS Codes 393 or 601, between the vegetative buffer and land application area; and(3) install and maintain contour buffer strips, according to NRCS Code 332, in the land application area nearest to the vegetative barrier or filter strip.30 Tex. Admin. Code § 321.42
The provisions of this §321.42 adopted to be effective July 9, 1990, 15 TexReg 3639; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective July 15, 2004, 29 TexReg 6652