(a) Purpose. The purpose of this section is to describe the operational requirements that apply to concentrated animal feeding operations (CAFOs). Any CAFO operator that does not use a retention control structure (RCS) is not subject to subsections (b) and (c) of this section.
(b) RCS operation and maintenance. A CAFO using an RCS for storage and treatment of stormwater, sludge, or process-generated wastewater, including liquid manure handling systems, shall ensure that the required capacity in the RCS is available to contain rainfall and rainfall runoff from the design rainfall event.
  (1) The operator shall restore such capacity after each rainfall event or accumulation of manure, sludge, or process-generated wastewater that reduces such capacity, when conditions are favorable for irrigation. Favorable conditions shall be when the soil moisture level decreases so that irrigation will not cause runoff.
  (2) The normal operating wastewater level in the RCS shall be maintained in accordance with the design of the RCS. If the water level in the RCS encroaches into the storage volume reserved for the design rainfall event, the operator must document the conditions that resulted in this occurrence. As soon as irrigation is allowed, the CAFO operator shall irrigate until the water level is at or below the design rainfall level.
  (3) If an RCS is in danger of imminent overflow from chronic or catastrophic rainfall or catastrophic conditions, the CAFO operator shall take reasonable steps to irrigate wastewater to land management units (LMUs) only to the extent necessary to prevent overflow from the RCS. If irrigation results in a discharge from an LMU, the CAFO operator shall collect samples from the drainage pathway at the point of discharge from the LMU, analyze the samples for the parameters identified in §321.44(b)(1) of this title (relating to Concentrated Animal Feeding Operation (CAFO) Notification Requirements), and provide the appropriate notifications in accordance with §321.44(a) of this title. The operator shall orally notify the appropriate regional office within 24 hours of beginning irrigation under this provision and in writing within 14 working days.
  (4) A rain gauge capable of measuring the design rainfall event shall be installed and properly maintained.
  (5) The CAFO operator shall maintain the liner to inhibit infiltration of wastewater. The CAFO operator shall ensure liners and embankments are protected from animals by fences or other protective devices. No tree shall be allowed to grow such that the root zone would intrude or compromise the structure of the liner or embankment. Any mechanical or structural damage to the liner or embankment shall be evaluated by a licensed Texas professional engineer within 30 days following discovery of the damage. For re-certification of an earthen liner following mechanical or structural damage, a minimum of one sample shall be collected and analyzed to document that the liner meets the requirements of the liner certification for that RCS prior to the damage.
  (6) The CAFO operator shall install and maintain a permanent pond marker in the RCS, visible from the top of the embankment that identifies, either physically or by documentation in the pollution prevention plan, the volume required for the design rainfall event and minimum treatment volume, in accordance with §321.43(j)(3)(B) of this title (relating to Air Standard Permit for Animal Feeding Operations (AFOs)).
(c) Sludge. The CAFO operator shall monitor sludge accumulation and depth in an RCS, as necessary, based upon the design sludge storage volume in the RCS.
  (1) Sludge shall be removed from the RCSs in accordance with the design schedule for cleanout to prevent the accumulation of sludge from encroaching on the volumes reserved for minimum treatment, if necessary, and the design rainfall event.
  (2) The operator shall provide written notice to the appropriate regional office of the commission as soon as the RCS cleaning is scheduled, but not less than ten business days prior to cleaning. The operator shall also provide written verification of completion to the same regional office within five business days after the cleaning is complete. This paragraph does not apply to cleaning of solid separators or settling basins. Removal of sludge shall be conducted during favorable wind conditions that carry odors away from nearby receptors. Any increase in odors associated with a properly managed cleanout under this subsection will be taken into consideration by the executive director when determining compliance with the provisions of this subchapter.
(d) Spill prevention and recovery. The CAFO operator shall take appropriate measures necessary to prevent spills and to clean up spills of any toxic pollutant. Where potential spills can occur, materials, handling procedures, and storage shall be specified. The CAFO operator shall identify the procedures for cleaning up spills and shall make available the necessary equipment to personnel to implement a cleanup. The CAFO operator shall store, use, and dispose of all pesticides in accordance with label instructions. There shall be no disposal of pesticides, solvents or heavy metals, or of spills or residues from storage or application equipment or containers, into RCSs. Incidental amounts of such substances entering an RCS as a result of stormwater transport of properly applied chemicals is not a violation of this section.
(e) Storage of manure and sludge. A permit or authorization will establish requirements for the temporary storage of manure, or sludge not to exceed 30 days, and requirements for permanent storage for more than 30 days. Temporary storage of manure and sludge in the 100-year flood plain, near water courses, or near recharge features is prohibited, unless protected from inundation and damage that may occur during the 100-year runoff event. Contaminated runoff from manure storage piles must be retained on site. If the manure areas are not roofed or covered with impermeable material, protected from external rainfall, or bermed to protect from runoff in the case of the design rainfall event, the manure areas must be located within the drainage area of the RCS and accounted for in the design calculations of the RCS.
(f) Composting. Composting on site at a CAFO shall be performed in accordance with Chapter 332 of this title (relating to Composting). CAFOs may compost manure, sludge, and dead animals generated on site. In accordance with Chapter 332 of this title, a CAFO operator may add agricultural products to provide an additional carbon source or bulking agent to aid in the composting process. If the compost areas are not roofed or covered with impermeable material, protected from external rainfall, or bermed to protect from runoff in the case of the design rainfall event, the compost areas must be located within the drainage of the RCS and must be shown on the site plan and accounted for in the RCS design calculations.
(g) Maintenance of animals.
  (1) Animals confined at the CAFO shall be restricted from coming into direct contact with surface water in the state through the use of fences or other controls.
  (2) A CAFO that maintains animals in pastures must maintain crops, vegetation, forage growth, or post-harvest residues in the normal growing season, excluding the feed and water trough areas.
  (3) Carcass disposal. Carcasses shall be collected within 24 hours of death and properly disposed of within three days of death in accordance with Texas Water Code, Chapter 26; Texas Health and Safety Code, Chapter 361; and Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), unless otherwise provided for by the commission. Animals must not be disposed of in any liquid manure or process wastewater system. Disposal of diseased animals shall also be conducted in a manner that prevents a public health hazard in accordance with Texas Agriculture Code, §161.004, and 4 TAC §§31.3, 58.31(b), and 59.12 (relating to Disposal, Disposal of Diseased or Exposed Livestock, and Carcass Disposal Requirements, respectively). Carcass disposal shall be addressed in the potential pollutant sources section of the pollution prevention plan with management practices to prevent contamination of surface or groundwater, control access, and minimize odors.
(h) Closure required.
  (1) The operator shall submit a closure plan to the executive director and the appropriate regional office within 90 days of permanently ceasing operations.
  (2) The closure plan must be developed and certified by a licensed Texas professional engineer to meet the standards contained in the NRCS Practice Standard Code 360 (Closures of Waste Impoundments), and using the guidelines contained in the Texas AgriLife Extension Service/NRCS publication #B-6122 (Closure of Lagoons and Earthen Manure Storage Structures).
  (3) The RCS or CAFO shall be properly closed within one year of Texas Commission on Environmental Quality receipt of the closure plan or an alternate schedule approved by the executive director. The RCS or CAFO is considered properly closed upon certification by a licensed Texas professional engineer that closure is complete according to the closure plan.
  (4) The operator shall maintain or renew its existing authorization and maintain compliance with the requirements of this subchapter until the facility is properly closed.

Source Note: The provisions of this §321.39 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 March 6, 2002, 27 TexReg 1511; amended to be effective September 1, 2003, 28 TexReg 6302; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786