[Federal Register Volume 86, Number 28 (Friday, February 12, 2021)]
[Notices]
[Pages 9332-9334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02895]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R06-OW-2020-0608; FRL-10019-98-Region 6]


Approval of the Application by the State of Texas for Partial 
National Pollutant Discharge Elimination System (NPDES) Program 
Authorization for Oil and Gas Discharges

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: On January 15, 2021, the Regional Administrator for the United 
States Environmental Protection Agency (EPA), Region 6 approved the 
request of the State of Texas' for Partial National Pollutant Discharge 
Elimination System (NPDES) program authorization 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. On October 12, 2020, 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 approval of the State's submittal of the application for 
NPDES oil and gas authorization.

DATES: Pursuant to 40 CFR part 123.61(c), the Partial NPDES Program of 
the State of Texas was approved and became effective January 15, 2021.
    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/npdes-permts.

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. 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. As of 
January 15, 2021, authority to implement the NPDES permitting, 
compliance monitoring and enforcement program for oil and gas 
activities in Texas transferred from the EPA to the TCEQ. The TCEQ's 
authority applies on land within the State of Texas and extends 3.0 
statute miles (1 statute mile equals 5,280 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 is not 
subject to the NPDES program and therefore cannot be delegated to 
states. The 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 approval 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

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also provide notice of a public hearing to be held no less than 30 days 
after publication of the notice. See 40 CFR part 123.61. After the 
close of the public comment period, the EPA determines 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.
    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 was for 
approval of a Major Category 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 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, the 
EPA retained 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 
was attached as Attachment A to the State's application.
    In accordance with 40 CFR part 123.21, the State's application 
included the following 5 elements: (1) A letter from the Governor 
requesting program approval; (2) A complete program description, as 
required by 40 CFR part 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 
part 123.23; (4) A Memorandum of Agreement (MOA) with the Regional 
Administrator as required by 40 CFR part 123.24; and (5) Copies of all 
applicable State statutes and regulations, including those governing 
State administrative procedures.
    A complete program description was included as Attachment E to the 
State's submission. The program description was 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, was 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 certified 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 concerning the TPDES program 
and a MOA Addendum to address oil and gas discharges was 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 
the TCEQ Operating Policies and Procedures, were included as Attachment 
F to the State's submission. Please note that the TCEQ adopted by 
reference the EPA's Oil and Gas Effluent Limitation Guidelines (40 CFR 
part 435).
    On November 5, 2020, the TCEQ submitted revised language to 
Attachment E--Chapter 3 Enforcement Program Description for 
clarification purposes. The revised language did not affect substantive 
changes to the State's program submission and was not a material change 
under 40 CFR part 123.12(c). The revised language clarified that the 
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 constituted a complete package under 40 CFR part 123.21, and 
a letter of completeness was sent to the State on November 12, 2020. 
Pursuant to 40 CFR part 123.21, within 90 days of the EPA's receipt of 
the State's complete program submission, or by January 11, 2021, the 
EPA was required to approve or disapprove the program based on the

[[Page 9334]]

requirements of CWA Sec.  402(b) and 40 CFR part 123 and taking into 
consideration all comments received. However, pursuant to 40 CFR part 
123.21(d), the EPA and the State agreed via email dated January 5, 
2021, to extend the 90-day statutory review period deadline from 
January 11, 2021 to January 19, 2021 to allow the EPA additional time 
to consider and respond to all public comments.
    Public notice of the application: On November 27, 2020, the EPA 
published notice of the State's application for NPDES program 
authorization for oil and gas discharges within the State and opened a 
45-day comment period as required by 40 CFR part 123.61(a), which ended 
on January 11, 2021 (85 FR 76076).
    Public notice of the State's application was also published in the 
following newspapers:

Dallas Morning News
Houston Chronicles
El Paso Herald
El Paso Time
Austin Times

    Public Participation Process: The EPA held a public meeting and 
public hearing regarding the State's application virtually via Adobe 
Connect on January 5, 2021. The EPA deviated from its typical hearing 
approach because of the President's national emergency declaration due 
to the COVID-19 pandemic. Because of the current Center for Disease 
Control and Prevention recommendations, as well as state and local 
orders for social distancing to limit the spread of COVID-19, the EPA 
could not hold in-person public meetings/public hearings. The public 
meeting included an overview of federal and state NPDES program 
requirements, the state program approval and submittal process (in 
accordance with 40 CFR part 123), and the general elements of Texas' 
proposed program for administration of the NPDES program for oil and 
gas discharges (including the roles and responsibilities of the EPA and 
the TCEQ). The public hearing provided interested parties the 
opportunity to provide oral testimony for the official record. There 
were 52 attendees at the public meeting and 35 attendees at the public 
hearing. Two individuals presented oral testimony at the public hearing 
and 156 written comments were received by EPA prior to the close of the 
comment period.
    Summary of Comments Received: In addition to the oral testimony at 
the public hearing, the EPA received 156 comments on the State of 
Texas' request for NPDES program authorization for oil and gas 
discharges. Comments were received from the following entities:

The Texas Alliance of Energy Producers
Environmental Defense Fund
The Sierra Club, Lone Star Chapter
Bay Coastal Watch Association
Audubon Texas
Pioneer Natural Resources, USA, Inc.
Texas Independent Producers and Royalty Owners Association
The American Exploration and Production Council (AXPC)
Citizens of the local communities

    EPA received 156 written comments. Of those 156 comments, 
approximately 130 were very similar in nature, expressing concern with 
the State's request to implement the NPDES oil and gas program in the 
State and requesting an extension of the 45-day public comment period. 
Commenters in opposition to EPA's approval of the State program 
expressed various concerns, including TCEQ's ties to the oil and gas 
industry, the lack of current understanding as to the composition of 
produced waters, and the need for updated effluent limitations 
guidelines related to oil and gas discharges. At least one commenter 
acknowledged that the State's program likely met the minimum 
requirements for authorization under the CWA and 40 CFR part 123, but 
expressed concern that the EPA retain sufficient oversight over permit 
review and issuance to ensure compliance with the CWA.
    The EPA received 6 comments in support of the State's request for 
program authorization. These commenters asserted, among other things, 
that TCEQ has extensive experience with writing NPDES permits for a 
wide range of discharges, that the requirement to incorporate 
applicable effluent limitations guidelines into discharge permits will 
not change with the transfer of NPDES permitting authority from EPA to 
TCEQ, and that TCEQ is the agency most knowledgeable with regard to the 
quality of State water bodies and the permit requirements needed to 
protect those water bodies.
    All comments received by the EPA were considered by the agency in 
making its final decision to approve Texas' request for program 
authorization. Copies of all comments received and EPA's written 
responses to those comments are available at https://www.epa.gov/npdes-permits.
    Additional information about the State's request for partial NPDES 
program authorization, including a copy of the State's application and 
supporting documents, is available at www.regulations.gov, Docket No. 
EPA-R06-2020-0608, or at EPA's Region 6 web page https://www.epa.gov/npdes-permits. Documents from the public meeting and a transcript of 
the public hearing are available at the web page.
    On December 17, 2020, the EPA held a virtual tribal consultation 
conference to notify affected Tribes of the opportunity for formal and 
informal consultation, as well as the availability of EPA staff for 
informal discussions through-out the public participation process. The 
federally-recognized Texas Tribes that were represented included: The 
Alabama-Coushatta Tribes of Texas and the Kickapoo Traditional Tribe of 
Texas. The Ysleta del Sur Pueblo was not in attendance. The EPA did not 
receive any comments from the Tribes during the 45-day public comment 
period on the State of Texas's request for NPDES program authorization 
for oil and gas discharges within the State or a request to initiate 
formal consultation. Therefore, the EPA concluded that a formal tribal 
consultation was not required.
    Authority: This action is taken under the authority of section 
402(b) of the Clean Water Act as amended, 33 U.S.C. 1342(b). Pursuant 
to 40 CFR 123.61(c), I hereby provide public notice of the EPA's final 
action approving the State of Texas' request for NPDES program 
authorization for discharges of produced water, hydrostatic test water, 
and gas plant effluent, otherwise known as oil and gas discharges, 
within the State.

    Dated: February 5, 2021.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2021-02895 Filed 2-11-21; 8:45 am]
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