(a) The following requirements will be applied in a permit or authorization issued by the commission, as applicable to concentrated animal feeding operations (CAFOs).
(b) The effluent limitations promulgated by the United States Environmental Protection Agency applicable to duck CAFOs, including 40 Code of Federal Regulations (CFR) §§412.20 - 412.26 are adopted by reference.
(c) There shall be no discharge of manure, sludge, or wastewater from a poultry (chickens and turkeys), swine, or veal calf CAFO production area that is subject to the new source performance standards in 40 CFR §412.46.
  (1) The operator of a poultry (chickens and turkeys), swine, or veal calf CAFO subject to the new source performance standards in 40 CFR §412.46 shall design, construct, operate, and maintain retention control structures (RCSs) such that no discharge will occur.
  (2) Provisions for upset or bypass, as defined in §321.32 of this title (relating to Definitions) and as provided in 40 CFR §122.41 (m) and (n), apply to a new source subject to this provision. To establish the affirmative defense of upset, a permittee shall demonstrate, through properly signed operating logs, or other relevant evidence that:
    (A) an upset occurred and that the permittee can identify the cause(s) of the upset; and
    (B) the permitted facility was at the time being properly operated in accordance with its permit or authorization and all applicable CAFO rules and regulations.
(d) Except as provided by this subsection, and §321.42(c) of this title (relating to Requirements Applicable to the Major Sole-Source Impairment Zone), for all other CAFOs, there shall be no discharge of manure, sludge, or wastewater from a CAFO production area.
  (1) The operator of the CAFO shall design, construct, operate, and maintain RCSs to contain all wastewater including the runoff and direct precipitation from the 25-year, 24-hour rainfall event for the location of the facility.
  (2) A discharge that is the result of a chronic or catastrophic rainfall event, or the result of catastrophic conditions, from an RCS that has been properly designed, constructed, operated, and maintained is allowed.
  (3) Voluntary alternative performance standards may be established in an individual water quality permit for a cattle (other than veal calves) or dairy CAFO, when requested by a permit applicant. These standards may be established as effluent limitations in lieu of the requirements of paragraph (1) of this subsection, so long as they are not in conflict with other requirements of this subchapter or other requirements of the commission. Voluntary alternative performance standards shall be consistent with the requirements of 40 CFR §412.31(a)(2).

Source Note: The provisions of this §321.37 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 July 31, 2014, 39 TexReg 5786