Am. S.B. 393

126th General Assembly

(As Passed by the Senate)

 

Sens.      Mumper, Grendell, Niehaus, Schuler, Harris

·        Modifies the requirements governing the issuance of individual and general national pollutant discharge elimination system (NPDES) permits by the Director of Agriculture.

·        Alters two agricultural exceptions to permit requirements in the Water Pollution Control Law by specifying that the exceptions governing the application of any materials to land for agricultural purposes or runoff of the materials from that application or pollution by animal waste or soil sediment and the excrement of domestic and farm animals defecated on land or related runoff into any waters of the state do not apply to any discharge that is prohibited by, or for which a permit is required by, the Federal Water Pollution Control Act.

·        Makes changes to a third agricultural exception to permit requirements in that Law, which is contingent on the United States Environmental Protection Agency's (USEPA's) approval of the NPDES program submitted by the Director, by specifying that the exception applies to any discharge that is within the scope of that approved NPDES program.

·        Specifies that, contingent on the USEPA's approval of the NPDES program submitted by the Director of Agriculture, the Director of Agriculture must administer and enforce permits issued under section 402(A) of the federal Water Pollution Control Act within this state that are issued for any discharge that is within the scope of the approved NPDES program submitted by the Director.

NPDES permits

Background

The Federal Water Pollution Control Act and regulations adopted under it establish the national pollutant discharge elimination system (NPDES) program.  The program generally requires a permit, called a NPDES permit, to be obtained for the discharge of sewage, industrial waste, or other wastes into the waters of the state.  A NPDES permit is issued for each point source of discharge.  A NPDES permit may be an individual permit or a general permit.

Currently, the Director of Environmental Protection administers the NPDES program in Ohio (sec. 6111.03, not in the bill).  However, the Concentrated Animal Feeding Facilities Law authorizes the Director of Agriculture to participate in the NPDES program and requires that Director to prepare and submit to the United States Environmental Protection Agency (USEPA) a state program for the issuance of NPDES permits for the discharging, transporting, or handling of storm water from an animal feeding facility or of manure.  On and after the date on which the USEPA approves the program, authority for that portion of the NPDES program is transferred from the Director of Environmental Protection to the Director of Agriculture.  (Sec. 903.08.)  At the time that the bill was introduced, the USEPA had not approved the program.[1] 

Revisions

Under current law, on and after the date on which the USEPA approves the NPDES program submitted by the Director of Agriculture, no person can discharge manure from a point source into waters of the state without first obtaining a NPDES permit issued by the Director of Agriculture.  Current law requires the owner or operator of a concentrated animal feeding operation (CAFO) to apply for an individual NPDES permit or for coverage under a general NPDES permit issued by the Director.  The bill instead requires any person that is required by the Federal Water Pollution Control Act to obtain a permit for the discharge of manure to apply for an individual NPDES permit or for coverage under a general NPDES permit issued by the Director.

Under existing law, a CAFO is deemed to be a point source that discharges manure into the waters of the state unless the Director has determined that the CAFO has no potential to discharge manure into the waters of the state.  If an owner or operator of a CAFO receives notice from the Director that the Director has determined that the CAFO has no potential to discharge manure, the owner or operator is not required to apply for an individual NPDES permit or for coverage under a general NPDES permit for that operation.  The Director's determination must be made in accordance with rules.  The bill eliminates those provisions.  In addition, the bill authorizes the Director to issue, revoke, modify, or deny an individual NPDES permit that a person is required to obtain or issue, revoke, or deny coverage under a general permit in compliance with all requirements of the Federal Water Pollution Control Act.  (Sec. 903.08(B)(1).)

Agricultural exceptions to Water Pollution Control Law

Existing law prohibits anyone from causing pollution or placing or causing to be placed any sewage, industrial waste, or other wastes in a location where they cause pollution of any waters of the state.  Such an action is a public nuisance unless the Director of Environmental Protection has issued a permit governing the action under the state Water Pollution Control Law.  There are several statutory exceptions to the prohibition.  The bill revises three of the exceptions dealing with agricultural activities.  (Sec. 6111.04.)

Under current law, the prohibition does not apply to the application of any materials to land for agricultural purposes or runoff of the materials from that application or pollution by animal waste or soil sediment, including attached substances, resulting from farming, silvicultural, or earthmoving activities regulated by the law governing county commissioners or the Soil and Water Conservation Commission.  The bill changes one of the laws under which the activities are regulated from the law governing the Soil and Water Conservation Commission to the law governing the Division of Soil and Water Conservation in the Department of Natural Resources.  In addition, the bill specifies that the exception does not authorize, without a permit, any discharge that is prohibited by, or for which a permit is required by, the Federal Water Pollution Control Act or regulations adopted under it.  (Sec. 6111.04(F)(3).)

Existing law also specifies that the prohibition does not apply to the excrement of domestic and farm animals defecated on land or related runoff into any waters of the state.  As under the exception discussed above, the bill states that the exception does not authorize, without a permit, any discharge that is prohibited by, or for which a permit is required by, the Federal Water Pollution Control Act or regulations adopted under it.  (Sec. 6111.04(F)(4).)

Under current law, on and after the date on which the USEPA approves the NPDES program submitted by the Director of Agriculture as discussed above, the prohibition does not apply to storm water from an animal feeding facility or manure.  The bill retains the reference to the USEPA approval, but removes the references to storm water from an animal feeding facility and manure from the exception.  Instead, the bill states that the prohibition does not apply to any discharge that is within the scope of the approved NPDES program submitted by the Director.  (Sec. 6111.04(F)(5).)

Water pollution control permits

Under existing law, the holder of a permit issued under section 402(a) of the Federal Water Pollution Control Act does not need to obtain a permit for a discharge authorized by the permit until its expiration date.  The Director must administer and enforce those permits within this state and may modify their terms and conditions in accordance with the state Water Pollution Control Law.  Presumably the reference to Director is to the Director of Environmental Protection, but the language is unclear.

The bill generally retains those provisions, but with one substantive revision.  It clarifies that the reference to Director is to the Director of Environmental Protection and retains the authority of the Director of Environmental Protection to administer and enforce those permits with one exception.  Under the bill, on and after the date on which the USEPA approves the NPDES program submitted by the Director of Agriculture as discussed above, the Director of Agriculture must administer and enforce those permits within this state that are issued for any discharge that is within the scope of the approved NPDES program submitted by the Director of Agriculture.  (Sec. 6111.04(G).)

ACTION	DATE
Introduced	11-09-06
Reported, S. Agriculture	11-29-06
Passed Senate (27-4)	12-05-06

 

 

 

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