[Federal Register Volume 85, Number 229 (Friday, November 27, 2020)]
[Notices]
[Pages 76073-76077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26038]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-R06-OW-2020-0608; FRL-10017-34-Region 6]
Public Notice of State of Texas' Submittal to EPA of Request for
Partial National Pollutant Discharge Elimination System (NPDES) Program
Authorization for Oil and Gas Discharges
AGENCY: Environmental Protection Agency (EPA).
[[Page 76074]]
ACTION: Notice of availability; request for comment; notice of public
hearing.
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SUMMARY: The United States Environmental Protection Agency (EPA),
Region 6 is requesting comments on and will hold a public hearing for
the State of Texas' application for National Pollutant Discharge
Elimination System (NPDES) authority for discharges from produced
water, hydrostatic test water and gas plant effluent, hereafter
referred to as oil and gas discharges, within the State of Texas
(``application for NPDES oil and gas authorization'' or ``the
application''). The Governor of Texas submitted the application for
NPDES oil and gas authorization, seeking approval for the Texas
Commission on Environmental Quality (TCEQ) to implement a major
category partial NPDES program as provided for under the Clean Water
Act (CWA or ``the Act''). Today, the EPA is providing public notice of
the State's submittal of the application for NPDES oil and gas
authorization and of both a public hearing and public comment period on
the State's submission. The EPA will either approve or disapprove the
State's request for program authorization after considering all
comments received. If approved, the NPDES authority for oil and gas
discharges within the State of Texas will transfer from the EPA to the
TCEQ upon the date of program approval.
DATES: Comments must be received on or before January 11, 2021. The EPA
Region 6 will hold a virtual informational public meeting, followed by
a virtual public hearing no sooner than 30 days after the date of this
notice. Please refer to the ``Public Participation'' heading of the
SUPPLEMENTARY INFORMATION section for additional information on how to
submit comments and for specifics regarding the date, times, and how to
register for the public meeting and public hearing.
ADDRESSES: You may submit comments identified by Docket No. EPA-R06-OW-
2020-0608 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
To View and/or Obtain Copies of Documents. A copy of the
application and related documents may be viewed or downloaded, at no
cost, from the EPA website at https://www.epa.gov/publicnotices/notices-search/location/Texas or https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ms. Kilty Baskin, EPA Region 6 Office,
NPDES/Wetland Review Section (R6 WD-PN), 214-665-7500,
[email protected].
SUPPLEMENTARY INFORMATION:
A. Public Participation
1. How can I get copies of this document and other related information?
You may access this Federal Register Notice document electronically
at the EPA's website, https://www.epa.gov/publicnotices/notices-search/location/Texas or https://www.regulations.gov.
2. How and to whom do I submit comment?
We encourage the public to submit comments electronically as
described in the ADDRESSES Section of this notice, as there may be a
delay in processing mail and hand deliveries will be accepted by
appointment only due to public health concerns related to COVID-19.
Please submit your comments within the specified time period cited
in the DATES section of this document. Comments received after the
close of the comment period will be marked ``late''. The EPA is not
required to consider these late comments. All comments received by the
EPA in accordance with this section by the ending date of the comment
period and/or presented at the public hearing will be considered by the
EPA before a final decision is made regarding program approval.
3. How do I participate in the informational public meeting and/or
public hearing?
Informational Public Meeting: The informational public meeting will
be held virtually and will include a technical overview of the State's
proposed NPDES oil and gas program, as well as an opportunity for
questions and answers. The TCEQ will participate with the EPA during
this meeting. Questions or comments made during the informational
meeting will not be entered into the official record. Comments for the
official record must be made in accordance with the public hearing
procedures and/or submitted to the EPA as written comments before the
end of the comment period. To register to attend the virtual public
meeting, please refer to the online registration form available via
links regarding the Texas Program Authorization notice at https://www.epa.gov/publicnotices/notices-search/location/Texas. The last day
to pre-register for the public meeting will be 3 working days prior
before the meeting date
Public Hearing: Please note that the EPA is deviating from its
typical approach because the President has declared a national
emergency. Because of current CDC recommendations, as well as state and
local orders for social distancing to limit the spread of COVID-19, the
EPA cannot hold in-person public meetings at this time. As a result,
the public hearing will be held virtually. The public hearing will be
conducted in accordance with the provisions of 40 CFR 124.12, and will
provide interested parties with the opportunity to give written and/or
oral testimony into the official record.
The EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
attend or speak at the virtual public hearing, please refer to the
online registration form available via links regarding the Texas
Program Authorization notice at https://www.epa.gov/publicnotices/notices-search/location/Texas to register to speak at the virtual
hearing. The last day to pre-register to speak at the hearing will be 3
working days prior before the hearing date. Prior to the hearing, EPA
will post a general agenda for the hearing that will list pre-
registered speakers in approximate order at the Texas Program
Authorization Notice page accessible from: https://www.epa.gov/publicnotices/notices-search/location/Texas
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearing to run either ahead of schedule or behind schedule.
The EPA encourages commenters to provide the EPA with a copy of
their oral testimony electronically (via email) by emailing it to
[email protected]. The EPA also recommends submitting the text
of your oral
[[Page 76075]]
comments as written comments to the official docket.
The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral comments and
supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing is
posted online at https://www.epa.gov/publicnotices/notices-search/location/Texas. While the EPA expects the hearing to go forward as set
forth above, please monitor our website or contact Ms. Evelyn
Rosborough, 214-665- 7515, or email: [email protected] to
determine if there are any updates. The EPA does not intend to publish
a document in the Federal Register announcing updates.
If you require the services of a translator or a special
accommodation such as audio description, please pre-register for the
hearing at https://www.epa.gov/publicnotices/notices-search/location/Texas, and describe your needs one week before the date of the hearing.
Please note that the EPA may not be able to arrange accommodations.
B. General Information
1. Does this action apply to me?
Entities potentially affected by this action include the regulated
oil and gas community and citizens within the State of Texas. If
authorized, the TCEQ will implement the NPDES permitting, compliance
monitoring and enforcement program for oil and gas activities in Texas.
The TCEQ's authority will apply on land within the State of Texas and
extend 3.0 statute miles (1 statute mile equals 5280 feet) offshore
into the Gulf of Mexico. The EPA retains jurisdiction for discharges
more than 3 statute miles offshore in the Gulf of Mexico. Thus, CWA oil
and gas exploration and production related discharges in these waters
remain subject to the EPA's Outer Continental Shelf of the Gulf of
Mexico General Permit (GMG290000). In addition, spills or releases of
hydrocarbons subject to the Oil Pollution Act are not subject to the
NPDES program. The EPA's authority to address releases of hydrocarbons
to waters of the United States under the Oil Pollution Act cannot be
delegated to states and TCEQ will continue to refer incidents to EPA as
the regulatory authority for the Oil Pollution Act. The TCEQ NPDES
program does not apply in areas of Indian country as defined in 18
U.S.C. 1151. The EPA retains jurisdiction over discharges in these
areas. If you have any questions regarding the applicability of this
action to a particular entity, please contact Ms. Kilty Baskin at 214-
665-7500, [email protected].
2. What action is the EPA taking?
The EPA is providing notice of the State of Texas' request for
partial NPDES program authorization for oil and gas discharges within
the State. The Governor of Texas submitted the application for NPDES
oil and gas authorization pursuant to Section 402(b) of the CWA,
seeking approval for the TCEQ to implement a major category partial
NPDES program under Section 402(n)(3) of the Act. In accordance with
CWA section 402(b), 33 U.S.C. 1342(b), and NPDES regulations at 40 CFR
part 123, the EPA shall approve a State's application for program
approval unless adequate authority does not exist as required by the
CWA.
3. What is the EPA's authority for taking this action?
CWA section 402 established the NPDES permitting program and gives
the EPA authority to approve state NPDES programs. 33 U.S.C. 1342(b).
CWA section 402(n)(3) authorizes the EPA to approve a Major Category
Partial Permit Program covering administration of a major category of
discharges if ``(A) such program represents a complete permit program
and covers all of the discharges under the jurisdiction of a department
or agency of the State; and (B) the Administrator determines that the
partial program represents a significant and identifiable part of the
State program required by subsection (b).'' 33 U.S.C. 1342(n)(3).
State Permit Program Approval: Section 402 of the CWA, 33 U.S.C.
1342, created the NPDES program under which the EPA may issue permits
authorizing the point source discharge of pollutants to waters of the
United States under conditions required by the Act. CWA Section 402(b),
33 U.S.C. 1342(b), provides that the EPA shall approve a State's
request to administer its own permit program provided the State has
appropriate legal authority and a state program that meets the Act's
requirements. The regulatory requirements for state program submissions
and for EPA state program approval are set forth in 40 CFR part 123
(https://www.ecfr.gov/).
Decision Process: Pursuant to 40 CFR 123.61(b), the EPA must
approve or disapprove Texas' application for NPDES oil and gas
authorization within 90 days of receipt of a complete program
submission, unless this review period is extended by mutual agreement
between the EPA and the State pursuant to 40 CFR 123.21(d). Under CWA
Sec. 402(b) and 40 CFR part 123, the State must show, among other
things that it has the authority to issue permits that 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
an opportunity for a hearing on each proposed permit. Once the State's
request for program approval is declared complete, the CWA and its
implementing regulations require the EPA to provide notice of the
State's application and allow a comment period of at least 45 days
during which the public may express their views on the proposed State
program. The EPA's public notice of the application must also provide
notice of a public hearing to be held no less than 30 days after
publication of the notice. See 40 CFR 123.61.
After the close of the public comment period, the EPA will
determine whether to approve or disapprove the State's application
based on the requirements of section 402(b) of the CWA and 40 CFR part
123. If the EPA approves the State's program, the Regional
Administrator of EPA Region 6 will so notify the State and sign the
proposed Memorandum of Agreement between the EPA and the TCEQ (MOA). If
approved, notice of the approval will be published in the Federal
Register and, as of the date of program approval, the EPA will suspend
issuance of NPDES permits for oil and gas discharges in Texas. If the
EPA disapproves Texas' application for NPDES oil and gas authorization,
the State will be notified of the reasons for disapproval and of any
revisions or modifications to the program that are necessary to obtain
approval. The EPA will not make a final decision on whether to approval
or disapprove Texas' application until after: (1) Consideration of all
public comments provided during the public comment period, including
those submitted at the public hearing, and the preparation of a
responsiveness summary and (2) completion of government to government
tribal consultations, as requested, with federally recognized tribes in
Texas.
Summary of the State's Application/Proposed Program: By letter
dated October 9, 2020, and received by the EPA on October 12, 2020, the
Governor of the State of Texas submitted a request for NPDES program
authorization for oil and gas discharges in Texas. The request is for
approval of a Major Category
[[Page 76076]]
Partial Permit Program under CWA section 402(n)(3) covering
administration of a major category of discharges within the State. The
State's NPDES oil and gas program, if approved, would be administered
by the TCEQ. The TCEQ currently implements an approved partial NPDES
permitting program, the Texas Pollutant Discharge Elimination System
(TPDES) program, for discharges to waters of the State in accordance
with Clean Water Act Sec. 402(n)(3). However, when TCEQ was granted
authority by the EPA in 1998 to administer the NPDES program for
discharges under its jurisdiction, oil and gas discharges were
regulated by the Railroad Commission of Texas (RRC) and thus were not
included as part of the approved TPDES program. As a result, EPA is the
permitting authority for oil and gas discharges in Texas. In 2019,
House Bill 2771, 86th Texas Legislature, amended Texas Water Code Sec.
26.131 to transfer jurisdiction of discharges of produced water,
hydrostatic test water, and gas plant effluent into water in the state
from the RRC to the TCEQ upon NPDES program authorization from the EPA
for such discharges. A copy of Texas Water Code Sec. 26.131 is
attached as Attachment A to the State's application.
In accordance with 40 CFR 123.21, the State's application includes
the following 5 elements: (1) A letter from the Governor requesting
program approval; (2) A complete program description, as required by 40
CFR 123.22, describing how the State intends to carry out its
responsibilities under the Act and its implementing regulations; (3) An
Attorney General's statement as required by 40 CFR 123.23; (4) A
Memorandum of Agreement (MOA) with the Regional Administrator as
required by 40 CFR 123.24; and (5) Copies of all applicable State
statutes and regulations, including those governing State
administrative procedures.
A complete program description is included as Attachment E to the
State's submission. The program description is divided into four (4)
chapters:
Overview of the TCEQ, as required by 40 CFR 123.22(a) and
(b);
Oil and Gas Permitting Program Description, as required by
40 CFR 123.22(c), (d) and (g);
Oil and Gas Enforcement Program Description, as required
by 40 CFR 123.22(d), (e) and (g); and
Program Costs and Funding Description, as required by 40
CFR 123.22(b)(1)-(3).
A Statement of Legal Authority, signed by the Texas Attorney
General, is included as Attachment C to the State's submission. The
Statement of Legal Authority outlines the TCEQ's legal authority to
regulate the discharge of produced water, hydrostatic test water, and
gas plant effluent into water in the state resulting from oil and gas
activities upon NPDES program authorization from the EPA. The Statement
of Legal authority notes that when House Bill 2771 became effective,
the term ``produced water'' was not defined in State rules or statutes.
For the purposes of the TCEQ's implementation of amended Tex. Water
Code Sec. 26.131, the TCEQ defined the term ``produced water'' in 30
Tex. Admin. Code Sec. 305.541(b) as ``all wastewater associated with
oil and gas exploration, development, and production activities, except
hydrostatic test water and gas plant effluent, that is discharged into
water in the state, including waste streams regulated by 40 CFR part
435.'' Through the Statement of Legal Authority, the Texas Attorney
General certifies that amended Tex. Water Code Sec. 26.131, in
conjunction with the definition of produced water in 30 Tex. Admin.
Code Sec. 305.541(b) and the TCEQ's existing authority to issue
permits for the discharge of pollutants into water in the state in Tex.
Water Code Sec. 26.121, provides the TCEQ with authority to issue
TPDES permits for the discharge of all oil and gas wastewater into
water in the State in Texas.
The MOA between the TCEQ and the EPA Region 6 concerning the TPDES
program and a MOA Addendum to address oil and gas discharges are
included as Attachment D to the State's submission. The MOA Addendum
recognizes that one of the most important goals for transferring NPDES
program authority to Texas for oil and gas discharge permitting,
compliance monitoring and enforcement is to promote and facilitate the
expeditious transformation of federal NPDES and state permits into one
TPDES permit. The MOA Addendum describes in detail the permitting,
compliance monitoring and enforcement authority that will transfer to
the TCEQ on the date of program authorization. Upon authorization,
jurisdiction for EPA issued oil and gas permits and primary enforcement
authority for oil and gas discharges within the State will be
transferred to the TCEQ, with certain limited exceptions. The MOA
Addendum describes in detail those exceptions, i.e., permits and
enforcement actions for which the EPA will initially retain
jurisdiction, such as permits for which appeals are pending or
enforcement actions that are currently ongoing. The MOA Addendum also
details the actions that will trigger transfer of jurisdiction for
those permits and enforcement actions to TCEQ, for example resolution
of the permit appeal or resolution of the ongoing enforcement action.
Copies of all applicable State statutes and regulations, as well as
TCEQ Operating Policies and Procedures, are included as Attachment F to
the State's submission. Please note that TCEQ adopted by reference
EPA's Oil and Gas Effluent Limitation Guidelines (40 Code of Federal
Regulations (CFR) Part 435).
On November 5, 2020, the TCEQ submitted revised language to
Attachment E--Ch 3 Enforcement Program Description for clarification
purposes. The revised language does not affect substantive changes to
the State's program submission. The revised language clarifies that
TCEQ's existing spill response program has been evaluated and
determined to be adequate for the inclusion of wastewater spills from
oil and gas operations subject to the NPDES program. Upon the EPA's
approval of the State's request for NPDES authority for oil and gas
discharges, primary enforcement authority for such spills and releases
will transfer to the TCEQ. Spills or releases of hydrocarbons subject
to the Oil Pollution Act are not subject to the NPDES program. The
EPA's authority to address releases of hydrocarbons to waters of the
United States under the Oil Pollution Act cannot be delegated to states
and the TCEQ will continue to refer incidents to the EPA as the
regulatory authority for the Oil Pollution Act.
The EPA determined that the State's October 12, 2020 program
submission, including the November 5, 2020 clarification, constituted a
complete package under 40 CFR 123.21, and a letter of completeness was
sent to the State on November 12, 2020. Pursuant to 40 CFR 123.21,
within 90 days of the EPA's receipt of the State's complete program
submission, or by January 11, 2021, the EPA must approve or disapprove
the program based on the requirements of CWA Sec. 402(b) and 40 CFR
part 123 and taking into consideration all comments received, unless
this review period is extended by mutual agreement between the EPA and
the State pursuant to 40 CFR 123.21(d).
Authority: This action is taken under the authority of section
402 of the Clean Water Act as amended, 33 U.S.C. 1342. I hereby
provide public notice of the application by the State of Texas for
approval to administer the NPDES program for discharges from oil and
gas activities within the State, in accordance with 40 CFR 123.61.
[[Page 76077]]
Dated: November 19, 2020.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2020-26038 Filed 11-25-20; 8:45 am]
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