Ariz. Admin. Code § 18-9-D903

Current through Register Vol. 30, No. 45, November 8, 2024

Section R18-9-D903 - No Potential to Discharge Determinations for Large CAFOs

A. For purposes of this Section, "no potential to discharge" means that there is no potential for any CAFO manure, litter, or process wastewater to enter into a navigable water under any circumstance or climatic condition.

B. Any person who owns or operates a large CAFO and has not had a discharge within the previous five years may request a no potential to discharge determination by submitting to the Department:

1. The information specified in 40 CFR 122.21(f) and 40 CFR 122.21(i)(1)(i) through (ix) on a form obtained from the Department, by the applicable date specified in R18-9-D904(A); and

2. Any additional information requested by the Director to supplement the request or requested through an onsite inspection of the CAFO.

C. Process for making a no potential to discharge determination.

1. Upon receiving a request under subsection (B), the Director shall consider:

a. The potential for discharges from both the production area and any land application area, and

b. Any record of prior discharges by the CAFO.

2. The Director shall issue a public notice that includes:

a. A statement that a no potential to discharge request has been received;

b. A fact sheet, when applicable;

c. A brief description of the type of facility or activity that is the subject of the no potential to discharge determination;

d. A brief summary of the factual basis, upon which the request is based, for granting the no potential to discharge determination; and

e. A description of the procedures for reaching a final decision on the no potential to discharge determination.

3. The Director shall base the decision to grant a no potential to discharge determination on the administrative record, which includes all information submitted in support of a no potential to discharge determination and any other supporting data gathered by the Director.

4. The Director shall notify the owner or operator of the large CAFO of the final determination within 90 days of receiving the request.

D. If the Director determines that the operation has the potential to discharge, the person who owns or operates the CAFO shall seek coverage under an AZPDES permit within 30 days after the determination of potential to discharge.

E. A no potential to discharge determination does not relieve the CAFO from the consequences of a discharge. An unpermitted CAFO discharging a pollutant into a navigable water is in violation of the Clean Water Act even if the Director issues a no potential to discharge determination for the facility. If the Director issues a determination of no potential to discharge to a CAFO facility but the owner or operator anticipates a change in circumstances that could create the potential for a discharge, the owner or operator shall contact the Director and apply for and obtain permit authorization before the change of circumstances.

F. When the Director issues a determination of no potential to discharge, the Director retains the authority to subsequently require AZPDES permit coverage if:

1. Circumstances at the facility change;

2. New information becomes available; or

3. The Director determines, through other means, that the CAFO has a potential to discharge.

Ariz. Admin. Code § R18-9-D903

New Section made by final rulemaking at 9 A.A.R. 5564, effective February 2, 2004 (Supp. 03-4).