SECTION 321.36. Texas Pollutant Discharge Elimination System General Requirements for Concentrated Animal Feeding Operations (CAFOs)

(a) Applicability. These requirements apply to a concentrated animal feeding operation (CAFO) subject to the requirements of the Texas Pollutant Discharge Elimination System, unless otherwise noted.

(b) Permits. A CAFO shall comply with §305.125 of this title (relating to Standard Permit Conditions) and all applicable permit conditions contained in commission rules. Requirements to provide for and ensure compliance with standards set by the rules of the commission and the laws of Texas shall be determined and included in an individual water quality permit on a case-by-case basis to reflect the best method for attaining such compliance. Each permit shall contain terms and conditions as the commission determines necessary to protect human health and safety, and the environment.

(c) Nutrient management plan (NMP).

(1) The operator of a large CAFO shall develop and implement an NMP certified by a person or entity identified in §321.32(10) of this title (relating to Definitions) to be in accordance with the Texas Natural Resources Conservation Service NRCS Practice Standard Code 590. The plan shall include site-specific nutrient management practices that ensure appropriate agricultural utilization of nutrients in the manure, sludge, or wastewater. The NMP shall be updated annually. The operator shall determine the amount, in tons/acre or acre-inches/acre, of manure, sludge, and wastewater for each land management unit (LMU) using the following methodology:

(A) determine the phosphorus index rating using the Agronomy Technical Note No. 15 Phosphorus Assessment Tool of Texas;

(B) determine the maximum annual application rate using Appendix 5 of the NRCS Practice Standard Code 590 for Texas;

(C) determine the crop requirement or the crop removal rate, as appropriate, from the S Crops Table as contained in the Texas NRCS 590-Software Tool, site-specific historic CAFO yield data, or other sources as approved by the executive director; and

(D) account for:

(i) the results of soil tests required by §321.40(m)(1)(B) of this title (relating to Concentrated Animal Feeding Operation (CAFO) Land Application Requirements);

(ii) credits for all nitrogen in the soil that will be available for plant use;

(iii) the amount of nitrogen and phosphorus in the manure and wastewater to be applied;

(iv) consideration of multi-year phosphorus application (for any LMU where nutrients are applied at a rate based on crop phosphorus requirement, the methodology must account for single-year nutrient applications that supply more than the crop's annual phosphorus requirement); and

(v) all other additions of plant available nitrogen and phosphorus to the LMU (i.e., from sources other than manure or wastewater or credits for residual nitrogen).

(2) Terms of the NMP include the following:

(A) animal type and authorized head count;

(B) LMU and application acreage for each LMU;

(C) crops (including alternative crops) identified in the NMP with their yield goals for each LMU;

(D) the maximum application rates for nitrogen and phosphorus for each crop in each LMU;

(E) the methodology in paragraph (1) of this subsection (including formulas, sources of data, protocols for making determinations, etc.) and actual data used to calculate application rates; and

(F) any other factors necessary to determine the amounts of nitrogen and phosphorus to be applied.

(3) Changes to a NMP. Any changes, except changes resulting from annual recalculation, must be submitted to the executive director. The NMP will be reviewed by the executive director to determine if changes require revisions to the terms of the NMP. Revisions to terms of the NMP can be substantial or non-substantial.

(4) Substantial and non-substantial changes. Those changes that constitute a substantial change are defined in §321.32(56) of this title. Non-substantial changes include, but are not limited to, changes to the site-specific LMU information in the Phosphorus index Worksheet, changes to the maximum application rate of nitrogen or phosphorus to be land applied or changes in the phosphorus index rating.

(5) If changes to the terms of the NMP are determined to be substantial, the changes must be incorporated into the permit in accordance with §321.33(g) of this title (relating to Applicability and Required Authorizations).

(6) If changes to the terms of the NMP are determined to be non-substantial, the executive director will notify the permittee and include the revised permit in the permit record.

(7) The CAFO operator shall create, maintain for five years, and make available to the executive director, upon request, a copy of the site-specific NMP and records of manure and wastewater application.

(d) Compliance with the requirements of this section and applicable requirements of this subchapter constitute compliance with the provisions of 40 Code of Federal Regulations (CFR) §122.42(e)(1)(i) - (ix).

(e) Buffers for LMUs. A sinkhole shall be protected with a 100-foot buffer from manure, sludge, and wastewater application. Alternatively, the CAFO may substitute a 35-foot wide vegetative buffer around a sinkhole where alternative conservation practices or field-specific conditions will provide pollutant reductions equivalent to or better than the reductions that would be achieved by the 100-foot buffer.

(f) Soil sampling and testing procedures for dairy CAFOs, both state-only and Texas Pollutant Discharge Elimination System, located in a major sole-source impairment zone.

(1) Initial sampling. Before commencing land application of manure, sludge, or wastewater on an LMU, the operator shall collect and analyze at least one representative soil sample from each of the LMUs according to the following procedures. The CAFO operator is not required to collect soil samples or report on LMUs where manure, litter, or wastewater has not been applied during the preceding year. The CAFO operator must comply with the initial sampling requirement before resuming land application to such LMUs.

(2) Annual sampling. The TCEQ or its designee shall annually collect soil samples, according to the following procedures, for each LMU owned, operated, controlled, rented or leased by the CAFO operator where manure, litter, or wastewater was applied during the preceding year. The results of these analyses shall be used in determining the application rates for manure, sludge and wastewater.

(3) Sampling procedures. Soil sampling procedures shall employ sampling procedures using accepted techniques of soil science for obtaining representative samples and analytical results.

(A) Samples shall be collected using approved procedures described in this section and the agency's publication, RG-408 entitled "Soil Sampling for Concentrated Animal Feeding Operations."

(B) Samples shall be collected by the Texas Commission on Environmental Quality or its designee and analyzed by a soil testing laboratory within the same 45-day time frame each year (from 45 days prior to until 45 days after the date of the previous year's sampling date), except when crop rotations or inclement weather require a change in the sampling time frame.

(C) One composite sample shall be obtained for each soil depth zone per uniform soil type (soils with the same characteristics and texture) within each LMU.

(D) Composite samples shall be comprised of 10 - 15 randomly sampled cores obtained from each of the following soil depth zones:

(i) Zone 1: zero to six inches (for an LMU where the manure is incorporated directly into the soil) or zero to two inches (for an LMU where the manure is not incorporated into the soil). Wastewater is considered to be incorporated. If a zero to two-inch sample is required under this subsection, then an additional sample from the two to six-inch soil depth zone shall be obtained in accordance with the provisions of this section; and

(ii) Zone 2: six to 24 inches.

(4) Laboratory analysis. Laboratory analysis of the soil samples shall be performed for physical and chemical parameters to include: nitrate as nitrogen in parts per million (ppm), extractable phosphorus (ppm, using Mehlich III with Inductively Coupled Plasma (ICP)), potassium (extractable, ppm); sodium (extractable, ppm); magnesium (extractable, ppm); calcium (extractable, ppm); soluble salts (ppm) or electrical conductivity (deciSiemens/meter (dS/m) or millimhos/cm (mmhos/cm) - determined from extract of 2:1 volume to volume (v/v) water/soil mixture); and soil water pH.

(g) Annual report required. An annual report shall be submitted to the executive director's Office of Compliance and Enforcement, Enforcement Division, by March 31 of each year (for the reporting period of January 1 to December 31 of the previous year, or the actual 12-month reporting period used by the CAFO) from each CAFO authorized under a CAFO general permit or through an individual water quality permit in accordance with this subchapter. The report shall be submitted on forms prescribed by the executive director and shall include, but is not limited to, the following information:

(1) number and type of animals, whether in open confinement or housed under roof;

(2) estimated total manure, sludge, and wastewater generated during the reporting period;

(3) total manure, sludge, and wastewater land applied during the reporting period;

(4) total manure, sludge, and wastewater transferred to other persons during the reporting period;

(5) total number of acres for land application under the control of the CAFO operator, including both the acres included in the NMP for the CAFO and the total number of acres used during the reporting period for land application;

(6) summary of discharges of manure, sludge, or wastewater from the production area that occurred during the reporting period including dates, times, and approximate volume;

(7) a statement indicating that the NMP under which the CAFO is operating was developed or revised and approved by a certified nutrient management specialist;

(8) a copy of the initial soil analysis for each LMU, regardless of whether manure, sludge, or wastewater has been applied;

(9) soil monitoring reports of all soil samples collected in accordance with the requirements of this subchapter;

(10) groundwater monitoring reports if applicable;

(11) the actual crop(s) planted and yield(s) for each LMU;

(12) the actual nitrogen and phosphorus content of the manure, sludge, and process wastewater that was land applied;

(13) the data used in calculations and the results of calculations conducted in accordance with subsection (c) of this section;

(14) the amount of manure, sludge, and wastewater applied to each LMU during the reporting period;

(15) any supplemental fertilizer applied during the reporting period; and

(16) any other information requested by the executive director.

Source Note: The provisions of this §321.36 adopted to be effective April 1, 1987, 12 TexReg 904; 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; amended to be effective May 3, 2006, 31 TexReg 3585; amended to be effective July 31, 2014, 39 TexReg 5786