[Federal Register Volume 63, Number 118 (Friday, June 19, 1998)]
[Notices]
[Pages 33655-33665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16249]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6111-6]
State Program Requirements; Application To Administer the
National Pollutant Discharge Elimination System (NPDES) Program; Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Application for approval of Texas Pollutant Discharge
Elimination System.
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SUMMARY: The State of Texas has submitted a request for approval of the
Texas Pollutant Discharge Elimination System (TPDES) program pursuant
to section 402(b) of the Clean Water Act (CWA or ``the Act''). With
this request, the Texas Natural Resource Conservation Commission
(TNRCC) seeks approval to administer a major category partial permit
program for all discharges of pollutants into waters of the United
States under its jurisdiction. Today, EPA Region 6 is providing public
notice of Texas' request for TPDES program approval and of both a
public hearing and public comment period on the State's program
approval submission. EPA will either approve or disapprove the State's
request after considering all comments it receives.
ADDRESSES FOR VIEWING/OBTAINING COPIES OF DOCUMENTS: Copies of Texas'
TPDES program approval submission
[[Page 33656]]
(referred to throughout this notice as Texas' ``application'') and all
other documents in the official record (Docket No. 6WQ-98-1) are
available for inspection from 9 am to 4 pm, Monday through Friday,
excluding legal holidays, at EPA Region 6, 12th Floor Library, 1445
Ross Ave., Dallas, Texas 75202.
A copy of Texas' TPDES application is also available for inspection
from 8 am to 5 pm, Monday through Friday, excluding State holidays, at
Record Services, Room 1301, Building F, TNRCC, 12100 Park 35 Circle,
Austin, Texas 78753. You may contact Records Services at (512) 239-
0966.
Chapters 1-8 of Texas' TPDES application are available for review,
but not copying, at the following TNRCC Regional Offices:
Region 1 (Amarillo): 3918 Canyon Dr., Amarillo, TX 79109-4996, (806)
353-9251, FAX (806) 358-9545
Region 2 (Lubbock): 4630 50th St., Suite 600, Lubbock, TX 79414-3509,
(806) 796-7092, FAX (806) 796-7107
Region 3 (Abilene): 209 S. Danville, Suite B200, Abilene, TX 79605-
1451, (915) 698-9674, FAX (915) 692-5869
Region 4 (Arlington): 1101 E. Arkansas Ln., Arlington, TX 76010-6499,
(817) 469-6750, FAX (817) 795-2519
Region 5 (Tyler): 2916 Teague Dr., Tyler, TX 75701-3756, (903) 535-
5100, FAX (903) 595-1562
Region 6 (El Paso): 7500 Viscount Blvd., Suite 147, El Paso, TX 79925-
5633, (915) 778-9634, FAX (915) 778-4576
Region 7 (Midland): 3300 North A St., Bldg. 4, Suite 107, Midland, TX
79705-5421, (915) 570-1359, FAX (915) 570-4795
Region 8 (San Angelo): 301 W. Beauregard Ave., Suite 202, San Angelo,
TX 76903-6326, (915) 655-9479, FAX (915) 658-5431
Region 9 (Waco): 6801 Sanger Ave., Suite 2500, Waco, TX 76710-7807,
(254) 751-0335, FAX (254) 772-9241
Region 10 (Beaumont): 3870 Eastex Fwy., Suite 110, Beaumont, TX 77703-
1892, (409) 898-3838, FAX (409) 892-2119
Region 11 (Austin): 1921 Cedar Bend, Suite 150, Austin, TX 78758-5336,
(512) 339-2929, FAX (512) 339-3795
Region 12 (Houston): 5425 Polk Ave., Suite H, Houston, TX 77023-1486,
(713) 767-3500, FAX (713) 767-3520
Region 13 (San Antonio): 140 Heimer Rd., Suite 360, San Antonio, TX
78232-5042, (210) 490-3096, FAX (210) 545-4329
Region 14 (Corpus Christi): 6300 Ocean Dr., Suite 1200, Corpus Christi,
TX 78412-5503, (512) 980-3100, FAX (512) 980-3101
Region 15 (Harlingen): 134 E. Van Buren, Suite 301, Harlingen, TX
78550-6807, (956) 425-6010, FAX (956) 412-5059
Copies of the entire State TPDES application are available in paper
format. Copies of most documents are also available in electronic
format.
Part or all of the State's application (which comprises
approximately 4106 pages) may be copied at the TNRCC office in Austin,
or EPA's office in Dallas, at a minimal cost per page. A paper copy of
the entire application may be obtained from the TNRCC office in Austin
for a $510.00 fee. The cost of the principal documents, i.e the
Attorney General's Statement, Memorandum of Agreement, Program
Description, water quality Continuing Planning Process (Continuing
Planning Process + Implementation Procedures) and the Enforcement
Management System (Enforcement Guidelines + Compliance Procedures
Manual) all without their other associated appendices is $152.00.
Copies of the following portions of the TPDES application are
available in both paper and electronic format:
Chapter 1--Memorandum of Agreement Between TNRCC and EPA
Chapter 2--Overview of the TNRCC
Chapter 3--Permitting Program Description
Chapter 4--Pretreatment Program Description
Chapter 5--Sewage Sludge Program Description
Chapter 6--Enforcement Program Description
Chapter 7--Program Cost and Funding Description
Chapter 8--Attorney General's Statement of Legal Authority
Table 1 TPDES Estimated Program Costs (Existing Employees)
Table 2 TPDES Estimated Program Costs (New Employees)
Appendix 2-A Facilities Permitted by the TNRCC Having Oil & Gas Related
Activities
Appendix 3-C TNRCC Continuing Planning Process
Appendix 3-D Implementation of the TNRCC Standards Via Permitting
Appendix 3-E TNRCC Playa Policy
Appendix 3-I Standard Permit Provisions
Appendix 3-J Sewage Sludge Provisions
Appendix 6-A Enforcement Guidelines
Appendix 6-B Water Quality Inspection Procedures
Appendix 6-C Water Quality Inspection/Audit Forms
Appendix 6-D Water Quality Inspection Letters
Appendix 6-G Compliance Procedures Manual
The following portions of the TPDES application are only available
in paper format:
Figure 2-1 TNRCC Organization
Figure 2-2 Organization of Office of Chief Clerk
Figure 2-3 Organization of Legal Division
Figure 2-4 Organization of Field Operations Division
Figure 2-5 Organization of Enforcement Division
Figure 2-6 Organization of Water Quality Division
Figure 3-1 Wastewater Permitting Process Flow Chart
Figure 5-1 Sewage Sludge Application Registration Procedure
Figure 5-2 Sewage Sludge Application Permitting Procedure
Table 3 Organizational Structure and Resources for the TPDES Program
Appendix 3-A Industrial and Municipal Wastewater Permit Application
Forms
Appendix 3-B Miscellaneous Permit Application Forms
Appendix 3-F Designation of Major and Minor Discharges
Appendix 3-G Temporary and Emergency Order Application Forms/Shell
Documents
Appendix 3-H Implementation of the Basin Permitting Rule
Appendix 3-K CAFO Permit Application Form
Appendix 5-A Sewage Sludge Permit and Beneficial Land Use Registration
Applications
Appendix 5-B Sewage Sludge Annual Reporting Form
Appendix 5-C SSI: Beneficial Land Use Registrants and Sludge Only
Permittees
Appendix 5-D SSI: POTWs and Other Treatment Works Treating Sewage
Sludge in Texas
Appendix 6-E Complaints Handling
Appendix 6-F Noncompliance Reports
Appendix 7-A Position Descriptions for TPDES Functions
Appendix 7-B State Job Classifications for all TPDES Positions
Texas Rules (30 TAC)
Memorandums of Understanding
Texas Statutes
Copies of the documents available in electronic format are
accessible on the Internet at the EPA Region 6 web page http://
www.epa.gov/region6/6wq/npdes/publicnotice.htm and the TNRCC web page
http://www.tnrcc.state.tx.us.
Every effort has been made to include each document relevant to
EPA's decision on this matter in the official record for Docket No.
6WQ-98-1. However, because the documents associated with Texas' request
for
[[Page 33657]]
TPDES program approval are voluminous and have come from many sources,
EPA invites input from the public on any document that the public feels
should have been included in the official record, but has not been.
DATES FOR THE PUBLIC COMMENT PERIOD AND PUBLIC HEARING: The public
comment period on the State's request for approval to administer the
proposed TPDES program will be from the date of publication until
August 3, 1998. Comments must be received or post-marked by no later
than midnight on August 3, 1998.
Both an informal public meeting and a public hearing will be held
in Austin, Texas on July 27, 1998. The public meeting will include a
presentation on the TPDES program approval request, a brief update on
the status of the ongoing Endangered Species Act Sec. 7 consultation,
and a question and answer session. Written, but not oral, comments for
the official record will be accepted at the public meeting. The public
hearing will be conducted in accordance with 40 CFR 124.12, and will
provide interested parties with the opportunity to provide written and/
or oral comments for the official record. The public meeting will begin
at 1:00 pm. The public hearing will begin at 7:00 pm. Both the public
meeting and the public hearing will be held at the Holiday Inn-South,
3401 South IH 35, Austin, Texas 78741 (IH-35 and Woodward Dr.).
All public comments should reference Docket No. 6WQ-98-1 and may be
in either paper or electronic format. If submitting comments in paper
format, please submit the original and three copies of your comments
and enclosures (including references). To ensure that EPA can read,
understand and therefore properly respond to comments, the Agency would
prefer that comments be typed or legibly written and that commentors
cite the paragraph(s) or sections in the notice or supporting documents
to which each comment refers. Commentors who want EPA to acknowledge
receipt of their comments should enclose a self-addressed stamped
envelope.
Send all paper copy comments to: Ms. Wilma Turner (6WQ-O), Water
Quality Protection Division, EPA Region 6, 1445 Ross Avenue, Dallas,
Texas 75202. Comments may also be submitted electronically to the
following e-mail address: ``[email protected]''.
Electronic comments must be submitted as an ASCII file or in
WordPerfect 6.0 format, avoiding the use of special characters and
forms of encryption. Electronic comments should be identified by the
docket number 6WQ-98-1. EPA requests that electronic comments also
include the commentor's postal mailing address. No Confidential
Business Information (CBI) should be submitted through e-mail. Comments
and data will also be accepted on disks in WordPerfect 6.0 format or
ASCII file format. For those without regular access to an e-mail
system, electronic comments on this notice may be filed online at many
Federal Depository Libraries.
A copy of each comment should be submitted to: Mr. Thomas W. Weber,
Water Quality Division, Texas Natural Resource Conservation Commission,
P.O. Box 13087, Austin, Texas 78711-3087.
FOR FURTHER INFORMATION CONTACT: Ms. Wilma Turner at the EPA address
listed above or by calling (214) 665-7516, FAX (214) 665-6490, e-mail:
[email protected] or Mr. Tom Weber at the TNRCC address listed above
or by calling (512) 239-4576, Fax: (512) 239-4420).
SUPPLEMENTARY INFORMATION: Section 402 of the CWA created the NPDES
program under which EPA may issue permits for the point source
discharge of pollutants to waters of the United States under conditions
required by the Act. Section 402(b) requires EPA to authorize a State
to administer an equivalent state program, upon the Governor's request,
provided the State has appropriate legal authority and a program
sufficient to meet the Act's requirements.
The regulatory requirements for state program approval are set
forth in 40 CFR part 123. 40 CFR 123.21 lists the basic elements of an
approvable application. EPA Region 6 considers the documents submitted
by the State of Texas administratively complete at the time of this
document. EPA will not make a final decision on TPDES program approval
until after (1) considering all public comments provided during the
public comment period or at the public hearing, (2) completion of the
ongoing consultations with the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service on effects program approval may have
on endangered or threatened species and their designated critical
habitat, and (3) completion of ongoing consultations with the State
Historic Preservation Officer on effects program approval may have on
historic properties or sites listed or eligible for listing in the
National Register of Historic Places.
On February 5, 1998, the Governor of Texas requested NPDES major
category partial permit program approval 1 and submitted a
program description (including funding, personnel requirements and
organization, and enforcement procedures), an Attorney General's
statement, copies of applicable State statutes and regulations, and a
Memorandum of Agreement (MOA) to be executed by the Regional
Administrator of EPA Region 6 and the Executive Director of TNRCC.
Supplements to the State application were received by EPA Region 6 on
February 12, March 16, April 15, and May 4, 1998. EPA Region 6
determined that Texas' February 5, 1998, approval request, supplemented
by this additional information, constituted a complete package under 40
CFR 123.21, and a letter of completeness was sent to the Chairman of
the TNRCC on May 7, 1998.
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\1\ Major category partial permit program approval is provided
for under section 402(n)(3) of the CWA. Pursuant to that section,
EPA may approve a partial permit program covering a major category
of discharges if the program represents a complete permit program
and covers all of the discharges under the jurisdiction of the
agency seeking approval, and if EPA determines the program
represents a significant and identifiable part of the State program
required by section 402(b) of the Act. As discussed below under
``Scope of the Partial Program,'' TNRCC seeks permitting authority
for all facilities that have discharges within its jurisdiction.
However, TNRCC does not have jurisdiction over all discharges within
the State of Texas. A small portion of the State's discharges fall
under the jurisdiction of the Texas Railroad Commission.
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EPA is required to approve the submitted program within 90 days of
submission of the complete information unless it does not meet the
requirements of section 402(b) of the Act and EPA regulations, or EPA
and TNRCC jointly agree to extend this deadline. (See 40 CFR
123.21(d)). To obtain such approval, the State must show, among other
things, that it has authority to issue permits which comply with the
Act, authority to impose civil and criminal penalties for permit
violations, and authority to ensure that the public is given notice and
opportunity for a hearing on each proposed permit. After close of the
comment period and completion of the required consultations with other
federal agencies, the Regional Administrator for EPA Region 6 will make
a decision to approve or disapprove the TPDES program for
implementation by the State.
EPA's final decision to approve or disapprove the TPDES program
will be based on the requirements of section 402 of the CWA and 40 CFR
part 123. EPA is also required by the Endangered Species Act (ESA), the
National Historic Preservation Act and the Coastal Zone
[[Page 33658]]
Management Act, to consult with other federal agencies before making a
final decision in this matter. For example, the ESA requires federal
agencies to consult with the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service on the effects of federal actions
(including NPDES state program approvals) on endangered species.
Section 7(a)(2) of the ESA places a statutory requirement (separate and
distinct from CWA Sec. 402(b)) for EPA to ``* * * insure that any
action authorized, funded or carried out * * * is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of habitat * * * determined to be critical * * * '' EPA Region 6
initiated formal consultation under section 7 of the ESA on January 29,
1998. EPA's responsibilities under ESA, as well as under the National
Historic Preservation Act and the Coastal Zone Management Act are
discussed in more detail later in this notice. Under federal law, EPA
may not make a final decision on TPDES program approval until
consultation under these acts are completed, and it may be necessary to
seek TNRCC's agreement on an extension of the 90 day approval deadline.
If EPA approves the Texas partial program, the Regional
Administrator will so notify the State and will sign the proposed MOA.
Notice will be published in the Federal Register and, as of the date of
program approval, EPA will transfer to the TNRCC NPDES permitting
authority and primary enforcement responsibility for those discharges
subject to the TPDES program, with certain exceptions, which are
discussed below under Scope, Transfer of NPDES Authority, and Summary
of the TPDES Permitting Program. If EPA's Regional Administrator
disapproves the TPDES program, the TNRCC will be notified of the
reasons for disapproval and of any revisions or modifications to the
program which are necessary to obtain approval.
Public Hearing Procedures
The following procedures will be used at the public hearing:
1. The Presiding Officer shall conduct the hearing in a manner
which will allow all interested persons wishing to make oral statements
an opportunity to do so; however, the Presiding Officer may inform
attendees of any time limits during the opening statement of the
hearing.
2. Any person may submit written statements or documents for the
record.
3. The Presiding Officer may, in his discretion, exclude oral
testimony if such testimony is overly repetitious of previous testimony
or is not relevant to the decision to approve or require revision of
the submitted State program.
4. The transcript taken at the hearing, together with copies of all
submitted statements and documents, shall become a part of the record
submitted to the Regional Administrator.
5. The hearing record shall be left open until the deadline for
receipt of comments specified at the beginning of this Notice to allow
any person time to submit additional written statement or to present
views or evidence tending to rebut testimony presented at the public
hearing.
6. Hearing statements may be oral or written. Written copies of
oral statements are urged for accuracy of the record and for use of the
Hearing Panel and other interested persons. Persons wishing to make
oral testimony supporting their written comments are encouraged to
summarize their points rather than reading lengthy written comments
verbatim into the record. All comments received by EPA Region 6 by the
deadline for receipt of comments, or presented at the public hearing,
will be considered by EPA before taking final action on the Texas
request for NPDES program approval.
Scope, Transfer of NPDES Authority, and Summary of the TPDES
Permitting Program
A. Scope of the Partial Program
The proposed TPDES program is a partial program which conforms to
the requirements of section 402(n)(3) of the CWA. TNRCC's application
for program approval applies to all discharges covered by the authority
of that agency. This includes most discharges of pollutants subject to
the federal NPDES program (e.g. municipal wastewater and storm water
point source discharges, pretreatment, most industrial wastewater and
storm water point source discharges, and point source discharges from
federal facilities), including the disposal of sewage sludge (in
accordance with section 405 of the Act and 40 CFR part 503).
The TNRCC has authority to regulate discharges from industrial
facilities covered by all Standard Industrial Classification (SIC)
codes except for those facilities classified as 1311, 1321, 1381, 1382,
1389, 4922, and 4925, which are regulated by the Texas Railroad
Commission. Some activities at facilities within these SIC codes are
regulated by the TNRCC, and a list of the ten facilities currently
affected is included in Appendix 2-A of the TPDES application. EPA will
retain NPDES permitting authority and primary responsibility for
enforcement over all discharges not under the jurisdiction of TNRCC and
therefore not subject to the TPDES program, including those within the
jurisdiction of the Texas Railroad Commission. The TNRCC has authority
to regulate discharges of storm water associated with industrial
activity and discharges of storm water from municipal separate storm
sewer systems, except at facilities regulated by the Texas Railroad
Commission (see above). The TNRCC has primary responsibility for
implementing a Pretreatment Program and a Sewage Sludge Program. The
TNRCC has authority to regulate discharges from publicly owned and
privately owned treatment works and for discharges from concentrated
animal feeding operations (CAFOs) within the TNRCC's jurisdiction.
EPA would retain permitting authority and primary enforcement
responsibility over discharges from CAFOs not subject to TNRCC
jurisdiction. Pursuant to state statute, CAFOs authorized by TNRCC to
use, and that have actually used, a playa lake that does not feed into
any other surface water in the state as a wastewater retention facility
before July 10, 1991 (the effective date of TNRCC's adoption of related
revisions to the Texas Surface Water Quality Standards, 30 TAC Chapter
307) are not subject to water quality standards or other requirements
for discharges to waters in the state. These discharges, however, if to
waters of the United States, are subject to federal CWA requirements.
Because TNRCC would not have jurisdiction under the TPDES program to
require compliance with water quality standards for these discharges,
EPA would retain permitting authority and primary enforcement
responsibility over discharges into playa lakes that are waters of the
United States by CAFOs that received authorization to discharge and
commenced operation prior to July 10, 1991, and that are therefore not
subject to TNRCC jurisdiction.
TNRCC does not have, and is not seeking, the authority to regulate
discharges in Indian Country (as defined in 18 U.S.C. 1151). EPA will
retain NPDES permitting authority and primary enforcement
responsibility over Indian Country in Texas.
B. Transfer of NPDES Authority and Pending Actions
Upon approval of the TPDES program, authority for all NPDES
permitting activities, as well as primary
[[Page 33659]]
responsibility for NPDES enforcement activities, within the scope of
TNRCC's jurisdiction, would be transferred to the State, with some
exceptions. These exceptions would be agreed to by EPA and the State
under the MOA that would be signed upon program approval, and are
explained below. In addition to the exceptions listed below, EPA would
retain on a permanent basis its authority under section 402(d) of the
CWA to object to TPDES permits proposed by TNRCC, and if the objections
are not resolved, to issue federal NPDES permits for those discharges.
EPA would also retain on a permanent basis its authority under sections
402(I) and 309 of the CWA to file federal enforcement actions in those
instances in which it determines the State has not taken timely or
appropriate enforcement action.
1. Permits Already Issued by EPA
40 CFR 123.1(d)(1) provides that EPA retains jurisdiction over any
permit that it has issued unless the State and EPA have reached
agreement in the MOA for the State to assume responsibility for that
permit. The proposed MOA between EPA and the TNRCC provides that the
TNRCC would assume at the time of program approval permitting authority
and primary enforcement responsibility over all NPDES permits issued by
EPA prior to program approval, with the following exceptions:
a. Jurisdiction over those discharges covered by permits already
issued by EPA, but for which variances or evidentiary hearings have
been requested prior to TPDES program approval. Jurisdiction over these
discharges, including primary enforcement responsibility (except as
provided by paragraph 3 below--Facilities With Outstanding Compliance
Issues), would be transferred to the State once the variance or
evidentiary hearing request has been resolved and a final effective
permit has been issued.
b. Jurisdiction over all existing discharges of storm water
associated with industrial or construction activity (40 CFR
122.26(b)(14)), including allowable non-storm water, authorized to
discharge as of the date of program approval under one of the NPDES
storm water general permits issued by EPA prior to approval of the
TPDES program. The storm water general permits affected are: Baseline
Construction storm water general permit (57 FR 41209), NPDES permit
numbers TXR10*###; Baseline Non-construction storm water general permit
(57 FR 41297), NPDES permit numbers TXR00*###; and Multi-sector storm
water general permit (60 FR 51108), NPDES permit numbers TXR05*###.
(For an individual facility's permit number, the * is a letter and the
#'s are numbers--e.g. TXR00Z999). Jurisdiction over these storm water
discharges, including primary enforcement responsibility (except as
provided by paragraph 3 below--Facilities With Outstanding Compliance
Issues), would be transferred to TNRCC at the earlier of the time the
EPA-issued general permit expires or TNRCC issues a replacement TPDES
permit, whether general or individual.
Note: EPA Region 6 is in the process of modifying the Multi-
sector storm water general permit and this action is expected to be
completed prior to the time a final decision on TPDES program
approval is made. However, because permit modification does not
trigger the transfer of permit jurisdiction under this section, the
Multi-sector storm water general permit would remain under EPA's
jurisdiction until it expires or is replaced by a TNRCC permit
regardless of whether it is modified prior to program approval.
In addition, EPA Region 6 is in the process of reissuing the
Baseline Construction storm water general permit. This action is also
expected to be completed prior to a final decision on program approval.
If the Baseline Construction storm water general permit is reissued
prior to program approval, the permit would temporarily remain under
EPA jurisdiction pursuant to this section. However, even if the permit
is not reissued prior to program approval, EPA would temporarily retain
jurisdiction over the permit under paragraph 2 below (Permits Proposed
for Public Comment but Not Yet Final). The Baseline construction storm
water general permit was proposed for public comment by EPA on June 2,
1997, and has not yet been finalized.
c. Jurisdiction over new discharges of storm water associated with
industrial or construction activity, including allowable non-storm
water, eligible for coverage under one of the NPDES storm water general
permits issued by EPA prior to TPDES approval and listed above.
Facilities eligible for but not currently covered by one of these
general permits would continue to apply to EPA for coverage.
Jurisdiction over these storm water discharges, including primary
enforcement responsibility (except as provided by paragraph 3 below--
Facilities With Outstanding Compliance Issues), would be transferred to
TNRCC at the earlier of the time the EPA-issued general permit expires
or TNRCC issues a replacement TPDES permit, whether general or
individual.
Except as provided in paragraphs 2 and 3 below, EPA would not
retain, even on a temporary basis, jurisdiction over discharges from
individual storm water permits; storm water outfalls in waste water
permits; and storm water discharges designated by the State in
accordance with 40 CFR 123.26(g)(1)(I). The State would have
jurisdiction and permitting authority, including primary enforcement
responsibility, over these discharges immediately upon TPDES program
approval.
d. Jurisdiction over all discharges covered by large and medium
Municipal Separate Storm Sewer System (MS4) permits issued by EPA prior
to TPDES program approval. Jurisdiction over EPA-issued MS4 permits,
including primary enforcement responsibility (except as provided by
paragraph 3 below--Facilities With Outstanding Compliance Issues),
would be transferred to TNRCC at the earlier of the time the EPA-issued
permit expires or TNRCC issues a renewed, amended or replacement TPDES
permit.
2. Permits Proposed for Public Comment but Not Yet Final
EPA would temporarily retain NPDES permitting authority, as well as
primary enforcement responsibility (except as provided by paragraph 3
below--Facilities With Outstanding Compliance Issues), over all
discharges covered by general or individual NPDES permits that have
been proposed for public comment by EPA but have not been issued as
final at the time of program approval. Although section 402(c)(1) of
the Act establishes a 90 day deadline for EPA approval or disapproval
of a proposed State program and, if the program is approved, for the
transfer of permit issuing authority over those discharges subject to
the program from EPA to the State, this provision was intended to
benefit States seeking NPDES program approval. As a result, and in the
interest of an orderly and smooth transition from federal to State
regulation, the time frame for transfer of permitting authority may be
extended by agreement of EPA and the State. See, for example, 40 CFR
123.21(d), which allows a State and EPA to extend by agreement the
period of time allotted for formal EPA review of a proposed State
program. In order to render programmatic transition more efficient and
less confusing for permit applicants and the public, the State of Texas
and EPA have agreed to enter into an MOA that extends the time frame
for transfer of permit issuing authority over those permits that EPA
has already proposed for public comment, but which are not yet final at
the time of program
[[Page 33660]]
approval. Permitting authority and primary enforcement responsibility
would be transferred to the State as the permits are finalized.
3. Facilities With Outstanding Compliance Issues
EPA would temporarily retain primary NPDES enforcement
responsibility for those facilities which have any outstanding
compliance issues. EPA would retain jurisdiction of these facilities
until resolution of these issues is accomplished in cooperation with
the State. Files retained by EPA for the reasons given above would be
transferred to the State as the actions are finalized. Facilities would
be notified of this retained jurisdiction and again when the file is
transferred to the State. Permitting authority over these facilities
would transfer to the State at the time of program approval.
A list of existing Permittees that would temporarily remain under
EPA permitting jurisdiction/authority is included as part of the public
record and available for review. Texas would continue to provide State-
only permits for those dischargers over which EPA temporarily retains
permitting authority, and which need State authorization to discharge.
C. Summary of the Application Documents
The TPDES program is fully described in documents the State has
submitted in accordance with 40 CFR 123.21, i.e., a letter from the
Governor requesting program approval; a Memorandum of Agreement (MOA)
for execution by TNRCC and EPA; a Program Description, including an
Enforcement Management System, outlining the procedures, personnel and
protocols that would be relied on to run the State's permitting and
enforcement programs; and a Statement signed by the Attorney General
that describes the legal authority which the State has to administer a
program equivalent to the federal NPDES program. The State's TPDES
application consists of a letter from the Governor of Texas, enclosing
eight chapters and associated appendices. The content of those
documents is summarized below.
1. A Letter from the Governor
Texas' application for program approval includes a letter dated
February 5, 1998, from Governor George W. Bush, officially requesting
NPDES program approval.
2. The EPA/TNRCC MOA (Chapter 1)
The requirements for MOAs are found in 40 CFR 123.24. A Memorandum
of Agreement is a document signed by each agency, committing them to
specific responsibilities relevant to the administration and
enforcement of the State's regulatory program. A MOA specifies these
responsibilities and provides structure for the State's program
management and EPA's program oversight.
The MOA submitted by the State of Texas has been signed by Dan
Pearson, Executive Director of the Texas Natural Resource Conservation
Commission. The Regional Administrator of U.S. EPA Region 6 would sign
the document only if the program has been determined approvable after
all comments received during the comment period (including comments
received at the public hearing) have been considered. The MOA submitted
by TNRCC includes the following items:
Section I--General: This section contains general statements
describing the purpose of the MOA.
Section II--Scope of Authorization: This section contains the
statement of the scope of the NPDES program (pretreatment, storm water,
sewage sludge disposal programs) TNRCC would be administering.
Section III--State and Federal Responsibilities: Lists the
responsibilities of TNRCC and EPA in maintaining an effective program.
Also outlines the procedures for transfer of authority over discharges
over which EPA would be temporarily retaining authority and gives
timing for the transition.
Section IV--Permit Processing, Review and Issuance: describes all
agreements on the review and issuance of TPDES permits. It covers
TNRCC's responsibilities to issue permits, the transfer of EPA files to
the State, and the State's application review and permit development
process. Included are such things as procedures for permit modification
or reissuance, and EPA's review of TPDES drafted individual and general
permits. This section includes the State's commitment for responding to
public concerns and providing public participation in connection with
public hearings, evidentiary hearings, and administrative and judicial
enforcement actions.
Section V--Compliance Monitoring and Permit Enforcement: Describes
summary agreements between EPA and TNRCC regarding EPA oversight of the
TPDES enforcement program. These include those commitments on TNRCC's
compliance monitoring, reviews, pretreatment audits, and inspections.
Section VI--Pretreatment Program: Describes summary agreements
between EPA and TNRCC regarding EPA oversight of TPDES's implementation
of the industrial pretreatment program regulating industrial users of
municipal wastewater treatment plants.
Section VII--Sludge Management Program: Describes summary
agreements between EPA and TNRCC regarding EPA oversight of TPDES's
regulation of the disposal of biosolids (sewage sludge) generated by
wastewater treatment systems.
Section VIII--Transmittal of Information: This section describes
how reports and requests for information would be handled; and how
information is transferred between the two agencies.
Section IX--TPDES Program Review by EPA: Explains how EPA would
periodically review the TPDES program for implementation and continued
consistency with Clean Water Act requirements.
Section X--Amendments To Be Approved by EPA: This section describes
procedures to insure that EPA is given an opportunity to review any
proposed amendment, recision or repeal of any State statute or
regulation that could affect the continued viability of the TPDES
program.
Section XI--Approval, Effective Date And Term Of the MOA: Describes
how the MOA can be modified by EPA and TNRCC. Also establishes a
commitment to review the MOA within five years and make any necessary
changes. The MOA would become effective on the date of program
approval.
3. Program Description (Chapters 2-7)
A program description submitted by a State seeking program approval
must meet the minimum requirements of 40 CFR 123.22. It must provide a
narrative description of the scope, structure, coverage and processes
of the State program; a description of the organization, staffing and
position descriptions for the lead State agency; and itemized costs and
funding sources for the program for the first two years after program
approval. It must describe all applicable State procedures (including
administrative procedures for the issuance of permits and
administrative or judicial procedures for their review) and include
copies of forms used in the program. It must further contain a complete
description of the State's compliance and enforcement tracking program.
The program description submitted by TNRCC includes the following
items:
Chapter 2--Overview of the TNRCC: This chapter gives an overview of
the history, authority, and organization of the TNRCC.
Chapter 3--Permitting Program Description: Describes how TNRCC
staff
[[Page 33661]]
would develop effluent limitations; the permitting process, including
procedures for public participation in decision making process; and the
process for determining the Total Maximum Daily Load a surface water
can assimilate and still support its designated beneficial uses (e.g.,
swimming, fishing, public water supply, etc.).
The Continuing Planning Process (CPP) and its associated
Implementation Procedures (IP) used by the TNRCC to develop and
implement water quality standards and assess the condition of surface
waters of the State are found in two appendixes to Chapter 3 (Appendix
3-C: ``TNRCC Continuing Planning Process'' and Appendix 3-D:
``Implementation of the TNRCC Standards Via Permitting''). Portions of
the CPP and IP previously approved by EPA when TNRCC was not proposed
to be the NPDES permitting authority would be superseded by agreements
found in the section IV.B. of the proposed MOA between TNRCC and EPA.
The issues addressed by these superseding agreements include:
suspension of the use of biological surveys in the Implementation
Procedures; determining cessation of lethality in biomonitoring; use of
alternate test species for biomonitoring; calculation of Dioxin/Furan
permit limits; development of water quality-based effluent limitations
for discharges into the Rio Grande; ensuring all final limitations in a
TPDES permit would be consistent with the EPA-approved Water Quality
Management Plan (including any applicable Total Maximum Daily Loads);
ensuring variance from water quality standards would not be used to
establish an effluent limitation for a TPDES permit until the standards
variance has been reviewed and approved by EPA; and ensuring
appropriate limitations would be included in general permits to ensure
compliance with water quality requirements. Texas has committed to
incorporating the MOA agreements into the CPP and IP during the next
update to the CPP and IP. Taken together, these three documents
constitute the CPP required under 40 CFR 130.5(c) for the
Administrator's approval of a state program.
Chapter 4--Pretreatment Program Description: This chapter gives the
authority for the TNRCC pretreatment program; and the components of the
program such as, the establishment of limits for indirect users,
fundamentally different factors, categorical determination requests,
reporting requirements, inspections and enforcement.
Chapter 5--Sewage Sludge Program Description: This Chapter gives a
brief description of the TNRCC sewage sludge program, its history, and
statutory framework. It describes sludge permits and reports required.
Chapter 6--Enforcement Program Description: This chapter gives the
legal authority for TNRCC enforcement actions, outlines TNRCC policies
related to compliance and enforcement and provides a description of
State enforcement actions. It also gives a brief overview of compliance
review activities for inspections, Discharge Monitoring Reports and
other required reports to be submitted by the permittee, and describes
the Permits Compliance System and the types of data tracked by it.
States seeking approval of their permitting and enforcement program
under NPDES have the option of adopting EPA's enforcement policies,
procedures, and guidance; or providing in their program package a
complete description of their own enforcement authority and compliance
evaluation program (40 CFR 123.26 and 123.27). Texas submitted its own
enforcement management system (EMS) (Appendices 6-A through 6-G). An
EMS outlines the way the State systematically and efficiently
identifies instances of noncompliance and provides timely and
appropriate enforcement actions to achieve the final objective of full
compliance by the permittee with the Clean Water Act. An EPA memo dated
October 2, 1989, titled ``Final Version of the Revised Enforcement
Management System,'' describes seven basic principles that are common
to an effective EMS:
--Maintain a source inventory that is complete and accurate;
--Handle and assess the flow of information available in a systematic
and timely basis;
--Accomplish a pre-enforcement screening by reviewing the flow of
information as soon as possible after it is received;
--Perform a more formal enforcement evaluation where appropriate, using
systematic evaluation screening criteria;
--Institute a formal enforcement action and follow-up whenever
necessary;
--Initiate field investigations based on a systematic plan; and
--Use internal management controls to provide adequate enforcement
information to all levels of organization.
The TNRCC's Enforcement Management System (EMS) is a written
outline or guide which discusses the procedures that would be followed
to ensure that both federal and State regulatory requirements and goals
are accomplished in a timely and appropriate manner. For the purpose of
review, EPA considers the TNRCC EMS to consist of the seven appendices
to Chapter 6.
The inspection and enforcement functions of the TNRCC reside in the
Field Operations Division, Compliance Support Division, and Enforcement
Division of the Office of Compliance & Enforcement. The Field
Operations Division, with 16 regional offices across the State, is
responsible for inspecting all permitted and unpermitted facilities
which have or are believed to have a surface water discharge and is
primarily responsible for the investigation and resolution of all
citizen complaints involving waters of the State. The Compliance
Support Division provides agency sponsored or administered training
courses and technical assistance aimed at development of environmental
expertise by agency staff and those regulated by the TNRCC. The
Enforcement Division, in coordination with the Field Operations
Division, is responsible for addressing non-compliance with the
agency's regulations through enforcement actions.
The TNRCC has not adopted EPA's civil penalty policy, but uses
their own policy to assess and collect administrative penalties. The
penalty policy is discussed in detail in Appendix VI.
Chapter 7--Program Cost and Funding: This chapter gives a budget
summary on the projected costs and funding sources for the TPDES
program for the first two years after program approval.
4. Attorney General's Statement (Chapter 8)
An Attorney General's Statement is required and described in
regulations found at 40 CFR 123.23. The State Attorney General must
certify that the State has lawfully adopted statutes and regulations
which provide the State agency with the legal authority to administer a
permitting program in compliance with 40 CFR part 123. The Texas
Attorney General's Statement describes and cites State legal authority
it believes adequate to administer the TPDES program; and certifies
that the State has the legal authority to administer the TPDES program
in accordance with the regulations in 40 CFR part 123. Chapter 8
entitled ``Authority for the Texas National Pollutant Discharge
Elimination System Program,'' which was submitted by the
[[Page 33662]]
State of Texas on February 5, 1998, and the supplemental March 16,
1998, letter from Texas Attorney General Dan Morales to Acting EPA
Region 6 Regional Administrator Jerry Clifford, taken together,
constitute the Attorney General's Statement required by section 402(b)
of the CWA and 40 CFR 123.23 for purposes of the State's TPDES
application. All references to the ``Attorney General's Statement'' or
``statement of legal authority'' made in this document refer to the
combination of these two documents.
Public Comment on the Described Program
The program submitted by the State of Texas has been determined by
EPA to be complete in accordance with the regulations found at 40 CFR
part 123. EPA and TNRCC want the citizens of Texas to understand the
proposed TPDES program and encourage public participation in the
decision making process. Therefore, EPA requests that the public review
the program that TNRCC has submitted and provide any comments they feel
are appropriate. EPA will consider all comments on the TPDES program
and/or its approval in its decision.
EPA is specifically seeking public input on the following aspects
of the proposed TPDES program:
Public Participation
In discussions with the State of Texas over the last couple of
years concerning the possibility of federal approval of a Texas NPDES
program, EPA expressed various concerns regarding the opportunity for
public participation in the State permitting and enforcement processes.
For example, EPA raised concerns that notice and opportunity for
comment should be provided on proposed settlements of administrative
enforcement actions; that Texas notices should notify the public that
it may request a hearing on permit applications and that a hearing
would be granted if there was a significant degree of public interest;
that Texas should provide for permissive intervention in administrative
penalty actions; and over restrictions placed by the State on the
participation of citizens in formal evidentiary contested case hearings
and the implications of those restrictions on the ability of citizens
to establish standing to obtain judicial review of permits. In response
to these discussions, the State of Texas has implemented various
regulatory and statutory changes to enhance the opportunity for public
participation under the State program, and the Texas Attorney General
has stated that the law governing individual standing in Texas judicial
proceedings is substantially equivalent to current requirements for
standing under federal law. Through these statutory and regulatory
changes and the Texas Attorney General's statement, Texas has worked to
address EPA's concerns in this area. The results of the various
discussions between EPA and TNRCC regarding public participation issues
are reflected in an exchange of letters between TNRCC Commissioner
Barry McBee and Acting Region 6 Regional Administrator Jerry Clifford
dated June 16, 1997 (McBee to Clifford), June 19, 1997 (Jerry Clifford
to Barry McBee) and November 25, 1997 (Barry McBee to Jerry Clifford).
These three letters are included as part of the official record for
this matter.2
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\2\ Also included in the record and of interest on this issue is
an exchange of letters between Mr. Richard Lowerre of Henry,
Lowerre, Johnson, Hess, & Frederick and the TNRCC dated November 19,
1997 (Lowerre to TNRCC Chairman Barry McBee) and January 6, 1998
(Jim Phillips, Deputy Director of the Office of Legal Services,
TNRCC to Lowerre).
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Texas' Regulatory Flexibility Under Texas Water Code 5.123
The Texas Legislature added section 5.123 to the Texas Water Code
in 1997 (implementing Senate Bill 1591). This section gives the TNRCC
flexibility to exempt from State statutory or regulatory requirements
an applicant proposing an alternative method or alternative standard to
control or abate pollution. EPA raised questions concerning the effect
of the statute on TNRCC's obligations under the TPDES program. In
response, the Texas Attorney General stated that Texas Water Code 5.123
does not subtract from the TNRCC's authority required as a condition of
program approval under the CWA or EPA regulations since the statute
does not authorize the TNRCC to grant an exemption that is inconsistent
with the environmental requirements of any federally approved program.
In a letter from TNRCC Commissioner Ralph Marquez to Acting Region 6
Regional Administrator Jerry Clifford dated March 16, 1998,
Commissioner Marquez clarified TNRCC's position that section 5.123 does
not authorize TNRCC to grant permits that vary from applicable federal
requirements. To further clarify this position, Commissioner Marquez
committed to include the following language in the proposed MOA between
EPA and the TNRCC:
The regulatory flexibility authority in Senate Bill 1591 will
not be used by TNRCC to approve an application to vary a federal
requirement or a State requirement which implements a federal
program requirement under Sec. 402(b) of the Clean Water Act, EPA
regulations implementing that Section, or this MOA, including but
not limited to inspection, monitoring or information collection
requirements that are required under Sec. 402(b) of the Clean Water
Act, EPA regulations implementing that Section or this MOA to carry
out implementation of the approved federal program.
This language is included on page 8 of the proposed MOA.
Texas' Defense to Liability for Acts of God, War, Strike, Riot, or
Other Catastrophe
Section 7.251 of the Texas Water Code provides that if an event
that would otherwise be a violation of a statute, rule, order or permit
was caused solely by an act of God, war, strike, riot, or other
catastrophe, the event is not a violation of that statute, rule, order,
or permit. This statute and its effect on the TPDES program are
discussed in detail in the Attorney General's Statement provided by the
State of Texas as part of its application. However, EPA wishes to also
clarify its understanding of this statute and its role in the federally
authorized program.
It is important to first note that section 7.251 of the Texas Water
Code creates a defense to liability not provided for under the federal
CWA. Should EPA authorize the TPDES program, EPA would still retain its
authority to bring enforcement actions for violations of the Act, and
this authority would not be affected by section 7.251. Both EPA and the
courts have consistently interpreted the CWA as a strict liability
statute. The only defense to liability recognized under federal law is
the federal upset defense found at 40 CFR 122.41(n), which is a very
narrow affirmative defense for violations of technology-based effluent
limitations. Although both Texas Water Code section 7.251 and 40 CFR
122.41(n) provide for affirmative defenses that must be pled and proven
by the asserting party, the defenses are not analogous.
The Attorney General's Statement provided by the State of Texas
acknowledges that the defenses are not analogous. However, in his
effort to clarify the scope of the State statute, the Attorney General
compares section 7.251 to ``a federal defense that CWA Sec. 301(a) only
applies to any person causing an unauthorized discharge.'' It is EPA's
belief that no such federal defense exists. EPA has consistently taken
the position, which it believes is supported by available case law,
that any unauthorized discharge of pollutants is unlawful regardless of
the cause, and that a facility owner or operator is responsible for any
unlawful
[[Page 33663]]
discharge occurring at his facility. Therefore, although Texas Water
Code section 7.251 creates an affirmative defense to liability for
actions brought by Texas under State law, section 7.251 is not a
defense to enforcement actions brought by EPA pursuant to the federal
CWA.
As interpreted by the Texas Attorney General, section 7.251
provides an affirmative defense to unauthorized discharges under State
law only if the event causing the discharge is completely outside the
control of the person otherwise responsible for the discharge and only
if the discharge could not have been avoided by the exercise of due
care, foresight, or proper planning, maintenance or operation. Section
7.251 does not shield a party from liability if that party's action or
inaction contributed to the violation. Based on this interpretation, it
is EPA's understanding that if a facility owner or operator could have
reasonably anticipated a discharge, and could have taken steps to
prevent it by care and foresight, proper planning, or maintenance, then
the affirmative defense is unavailable. For example, if a heavy
rainfall, a strike, or a riot is reasonably foreseeable, or the
facility is not designed, operated, or maintained properly, then any
discharge resulting from such an event would not be solely caused by
the event, and the facility owner or operator would be unable to claim
the defense for such a discharge.
The Attorney General also states that section 7.251 would not
preclude the imposition of penalties for a violation that persists
after the original force majeure event ceases to be the sole cause of a
discharge, whether the persisting violation was a continuing discharge
or a failure to comply with a rule, order, or permit requirements. EPA
understands this to mean that even if a discharge at a facility were
initially caused by an act of God, and the facility owner or operator
in no way contributed to the discharge, either through his action or
inaction, if the facility owner or operator could have taken steps to
stop the discharge from continuing, but failed to do so, the facility
operator would be liable for the continuing discharge.
As discussed in the Attorney General's Statement, the main impact
of section 7.251 is to insulate a party from penalties; the statute's
effect on the TNRCC's injunctive authority is minimal in that it does
not affect a court's authority to issue an injunction to enforce any
Code requirement or prohibition, including the requirement that a party
comply with any permit, rule or order issued by the TNRCC. EPA
understands the Texas Attorney General's statement to conclude that the
TNRCC can enjoin by suit in State court any violation or threat of
violation of a statute, rule or permit under the TPDES program. Based
on this understanding, TNRCC appears to have injunctive authority
equivalent to EPA's authority under federal law despite the existence
of section 7.251.
In regard to the insulation of parties from penalties under section
7.251, EPA would rarely seek penalties for violations of the Act that
were completely beyond the control of a party, and in regard to which
that party had exercised due care, foresight, proper planning and
maintenance.
Therefore, based on the Texas Attorney General's Statement and
EPA's understanding of TNRCC's broad injunctive authority, the statute
does not appear to prevent TNRCC from demonstrating adequate authority
to meet its obligations under section 402(b) of the CWA.
Inspections
The federal regulations (40 CFR 123.26(e)(5)) require State NPDES
compliance evaluation programs to have the procedures and ability for
inspecting the facilities of all major dischargers and all Class I
sludge facilities where applicable at least annually. In the proposed
MOA between EPA and the TNRCC, the TNRCC states that it has the
procedures and ability for inspecting the facilities of all major
dischargers and all Class I sludge facilities where applicable at least
annually, and that it will inspect 100% of the majors and Class I
sludge facilities on an annual basis, or a universe of majors/minors
agreed upon annually by EPA and the TNRCC. The agreement to allow TNRCC
to substitute the inspection of a mutually agreed-upon universe of
majors/minors for inspection of 100% of the majors and Class I sludge
facilities is based on EPA's and TNRCC's commitment to a process for
targeting inspections according to the priorities established by TNRCC
to protect the waters of Texas. Under the terms of the proposed MOA,
the TNRCC will develop an annual inspection plan that establishes
priorities, lists the major and minor dischargers to be inspected, and
demonstrates that the plan is substantially equivalent to the annual
inspection of all major dischargers and Class I sludge management
facilities where applicable. The TNRCC will have to inspect majors at
some regular interval while expending resources on minors equivalent to
100% of the majors annually. The TNRCC will also have to demonstrate
water quality improvement as a result of the trade-off. Under the
proposed MOA, if EPA and the TNRCC are unable to reach agreement on the
universe of majors/minors to be inspected under the annual inspection
plan by the beginning of the following fiscal year, TNRCC agrees to
inspect 100% of the majors and all Class I sludge management facilities
where applicable.
Timely and Appropriate Enforcement
Section 402(b) of the Act requires that a State have adequate
authority to abate violations of the permit or the permit program.
Because the ability to take timely and appropriate enforcement action
is fundamental to an adequate enforcement program, EPA's Oversight
Guidance states that by the time a facility appears on the second
Quarterly Noncompliance Report, a formal enforcement action should have
been taken. Chapter 6 of Texas' application (Enforcement Program
Description) outlines the time frames for TNRCC issuance of enforcement
actions. The average time for TNRCC enforcement action issuance is 255
days. As a result, in implementing the TPDES program, TNRCC would not
in all cases be able to meet the timely and appropriate criteria
contained in EPA's Oversight Guidance. In cases where TNRCC cannot meet
this criteria, TNRCC has agreed in the proposed MOA to notify EPA 45
days prior to a facility appearing on the Exception List. EPA will then
initiate formal enforcement action in order to ensure that the
violations are addressed in a timely and appropriate manner.
Penalty Policy
The TNRCC proposes to use its own Penalty Policy in administering
the TPDES program, and the TNRCC policy differs in some respects from
the EPA penalty policy. It is EPA policy that penalties generally
should, at a minimum, collect the economic benefit accruing to the
violator as a result of violating the law. EPA's policy also states
that every effort should be made to calculate and recover an additional
amount, over and above economic benefit, to ensure that the violator
does not gain economically by violating the law. (EPA's February 1984
``Policy on Civil Penalties'' (#GM-21) as implemented in EPA's March 1,
1995 ``Interim CWA Settlement Penalty Policy''). TNRCC's policy will
not ensure that economic benefit will be collected, at a minimum, in
all cases, and TNRCC's policy allows for mitigation of penalties to
zero in some instances. Neither the CWA nor 40 CFR part 123 require a
State seeking NPDES
[[Page 33664]]
authority to adopt EPA's penalty policy verbatim. However, 402(b) of
the Act and 40 CFR 123.27 require that States have enforcement
authority, including civil and criminal penalties, adequate to abate
violations of a permit or the permit program. If the TPDES program were
approved, EPA would be required to over-file in certain instances in
order to ensure consistency with the Federal penalty policy that no
party be allowed to garner an unfair economic advantage through
avoiding the cost of compliance with environmental protection
requirements. Any penalties collected by EPA go to the federal, not the
State, treasury.
Applicability of Water-Quality Based Limits in the Absence of
Technology-Based Effluent Guidelines
In a brief filed February 12, 1998, in the U.S. Court of Appeals
for the Fifth Circuit on behalf of the State of Texas and the Texas
Railroad Commission in Texas Mid-Continental Oil & Gas Association v.
EPA (No. 97-60042 and Consolidated Cases), the Texas Attorney General
took the position that EPA did not have the authority to include water
quality-based effluent limitations in an NPDES permit unless
technology-based effluent guidelines had been developed. EPA vigorously
disagrees with this position and continues to maintain that under the
CWA, technology-based and water quality-based effluent limitations are
independently applicable in determining appropriate effluent
limitations for an NPDES permit.
While confident that the Texas Attorney General's position on EPA's
authority to independently require compliance with water quality
standards will not be upheld by the courts, EPA also believes it is not
necessary to wait for a final ruling by the courts before acting on the
TPDES program proposed by TNRCC. The Texas Attorney General's statement
confirms that TNRCC has full authority under state law to impose
effluent limitations for any discharge as necessary to insure
compliance with approved water quality standards. In addition, in a
March 16, 1998, letter to EPA Region 6 Acting Regional Administrator
Jerry Clifford from TNRCC Commissioner Ralph Marquez, Commissioner
Marquez committed to add additional language to the MOA to clarify that
in implementing the TPDES program, TNRCC would use water quality-based
effluent limits in permits wherever necessary to insure compliance with
water quality standards. As a result of Commissioner Marquez'
commitment, the following language is now included on page 24 of the
proposed MOA:
Water quality based effluent limitations will be included in
TPDES permits for all discharges to ensure compliance with approved
water quality standards. Water quality based effluent limitations
are part of the federally approved program and the State will impose
such limitations in TPDES permits unless technology-based effluent
limitations are more stringent.
Therefore, the proposed TPDES program would appear to function in a
manner consistent with EPA's interpretation of the requirements of the
CWA and its implementing regulations.
TPDES Resource Needs
The CWA and EPA regulations require States seeking approval of
State NPDES programs to demonstrate adequate resources, including
qualified personnel and sufficient funding, to operate the proposed
program if approved. Section 304(I)(2) of the CWA requires EPA to
promulgate guidelines establishing the minimum procedural and other
elements of State programs, including among other things, funding,
personnel qualifications, and manpower requirements. 40 CFR 123.22
requires a state seeking NPDES approval to provide as part of its
program submission a description of the staff who will carry out the
proposed State program and an itemization of the estimated costs of
establishing and administering the proposed program for the first two
years after approval. As required by 40 CFR 123.22, the State included
a description of the cost of establishing and administering the
proposed TPDES program for the first two years after program approval
in Chapter 7 of its application. However, information provided to EPA
by two public interest groups, the Texas Center for Policy Studies
(letter to Samuel Coleman and Steven A. Herman dated May 7, 1998) and
People Organized in Defense of Earth and her Resources (letter to Carol
Browner and Jerry Clifford dated April 29, 1998), has raised questions
concerning whether the available information indicates that the State,
if authorized, will have sufficient funding to adequately implement the
program. The answers to these questions will be important to EPA's
final decision on TPDES program approval. To that end, EPA intends to
seek clarification from the TNRCC regarding certain aspects of the
information provided. Any additional comments by the public will also
be considered by the Regional Administrator in making his final
decision.
It is also important to note that under the proposed TPDES program,
authority over storm water general permits (approximately 20,000
permittees) and municipal separate storm sewer permits (approximately
30 permits) already issued by EPA would not be transferred to TNRCC
until the federal permits expire or are replaced by a TPDES permit.
Therefore, permitting authority and primary enforcement responsibility
over a significant portion of the NPDES universe would not transfer to
TNRCC until after the period covered by the financial capability
information included in the program approval request. In addition, the
State would be required to begin administering Phase II of the NPDES
storm water program (expected to require permitting of numerous smaller
municipalities and construction sites) starting around 2001. As a
result of these anticipated increases in TNRCC responsibility in the
years following program approval, resources needed to run the program
would also increase. If the TPDES program were approved, TNRCC would be
expected to increase its resources commensurate with program growth,
and if it were unable to do so, the program would be subject to
withdrawal by EPA under 40 CFR 123.64(b).
Funding Sources Available for the TPDES Program
Under 40 CFR 123.22(b)(3), the program description must include an
itemization of the sources and amounts of funding, including Federal
grant money, expected to be available to TNRCC for the first two years
after approval to meet the costs of establishing and administering the
proposed TPDES program. However, since EPA cannot guarantee the level
of Federal funding Congress will make available in future years, a
State seeking program approval must be able to run its program with or
without the assistance of Federal funding.
Chapter 7 of the TPDES application contains both the expected
program costs and the required breakdown on funding sources. The
funding sources TNRCC would rely on for the first two years of the
proposed TPDES program includes federal grants totaling $7,224,305 per
year. Approximately 49% of the proposed TPDES budget would therefore be
dependent on the continued availability of Federal grants. The Texas
Legislature has already authorized TNRCC to increase the maximum annual
permit fee to $25,000 and to collect additional fees to recover the
costs of an authorized program.3 If
[[Page 33665]]
current levels of available Federal grant funds decline, TNRCC would
need to further increase fee revenue or seek additional funds from the
Texas Legislature to fund the TPDES program.
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\3\ Under Texas' proposed funding plan, the TNRCC will charge
fees for storm water permittees. As a result, many industrial
facilities, construction development projects and municipal separate
storm sewer systems not currently regulated by the TNRCC will become
subject to the TPDES fee system as storm water permitting authority
transfers from EPA to the TNRCC.
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Environmental Justice
EPA encourages States to include environmental justice provisions
in their environmental programs in furtherance of environmental justice
policies, and to help ensure compliance with non-discrimination
provisions of Title 6 of the Civil Rights Act. EPA wrote to TNRCC in
December of 1997, recommending that the State include an environmental
justice program as part of its proposed TPDES program. Under the
current regulations for State program approval, Texas is not required
to submit a description of program procedures to ensure environmental
justice issues are taken into consideration in TNRCC's permitting and
enforcement decisions. In a letter dated February 6, 1998, TNRCC
indicated it does have an environmental justice program. However, the
State did not make that program a part of the TPDES application.
Other Federal Statutes
A. National Historic Preservation Act
Section 106 of the National Historic Preservation Act requires that
all federal agencies must consult with the State Historic Preservation
Officer and the Advisory Council on Historic Preservation on all
federal undertakings which may affect historic properties or sites
listed or eligible for listing in the National Register of Historic
Places. Regulations outlining the requirements of a section 106
consultation on a federal undertaking are found at 36 CFR part 800. EPA
has initiated section 106 consultation on the State's request for
approval of the TPDES program.
B. Endangered Species Act
Section 7 of the Endangered Species Act (ESA) requires that all
federal agencies consult on federal actions which may affect federally
listed species to insure they are unlikely to jeopardize the continued
existence of those species or adversely modify their critical habitat.
Regulations controlling consultation under ESA section 7 are codified
at 50 CFR part 402. The approval of the State permitting program under
section 402 of the Clean Water Act is a federal action subject to this
requirement, but the State's subsequent TPDES permit actions are not.
EPA Region 6 initiated formal consultation with the U.S. Fish and
Wildlife Service on January 29, 1998.
C. Coastal Zone Management Act
Pursuant to section 307(c)(1)(C) of the Coastal Zone Management
Act, Federal agencies carrying out an activity which affects any land
or water use or natural resource within the Coastal Zone of a state
with an approved Coastal Zone Management Plan must determine whether
that activity is, to the maximum extent practicable, consistent with
the enforceable requirements of the Plan and provide its determination
to the State agency responsible for implementation of the Plan for
review. Texas' approved Coastal Zone Management Plan is administered by
the General Land Office and, more particularly, by its Coastal
Coordination Council. TNRCC permit actions are themselves subject to
consistency review under 31 TAC Sec. 505(11)(a)(6); thus approval of
TNRCC's TPDES program would not affect Texas' coastal zone and would be
consistent with the enforceable requirements of Texas' Coastal Zone
Management Plan.
D. Regulatory Flexibility Act
Based on General Counsel Opinion 78-7 (April 18, 1978), EPA has
long considered a determination to approve or deny a State NPDES
program submission to constitute an adjudication because an
``approval'', within the meaning of the APA, constitutes a ``license,''
which, in turn, is the product of an ``adjudication''. For this reason,
the statutes and Executive Orders that apply to rulemaking action are
not applicable here. Among these are provisions of the Regulatory
Flexibility Act (RFA), 5 U.S.C. 601 et seq. Under the RFA, whenever a
Federal agency proposes or promulgates a rule under section 553 of the
Administrative Procedure Act (APA), after being required by that
section or any other law to publish a general notice of proposed
rulemaking, the Agency must prepare a regulatory flexibility analysis
for the rule, unless the Agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
If the Agency does not certify the rule, the regulatory flexibility
analysis must describe and assess the impact of a rule on small
entities affected by the rule.
Even if the NPDES program approval were a rule subject to the RFA,
the Agency would certify that approval of the State's proposed TPDES
program would not have a significant economic impact on a substantial
number of small entities. EPA's action to approve an NPDES program
merely recognizes that the necessary elements of an NPDES program have
already been enacted as a matter of State law; it would, therefore,
impose no additional obligations upon those subject to the State's
program. Accordingly, the Regional Administrator would certify that
this program, even if a rule, would not have a significant economic
impact on a substantial number of small entities.
I hereby provide public notice of the application by the State of
Texas for approval to administer, in accordance with 40 CFR part 123,
the TPDES program.
Dated: June 11, 1998.
Gregg A. Cooke,
Regional Administrator.
[FR Doc. 98-16249 Filed 6-18-98; 8:45 am]
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