[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, 
baskin.kilty@epa.gov.

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 
rosborough.evelyn@epa.gov. The EPA also recommends submitting the text 
of your oral

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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: rosborough.evelyn@epa.gov 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, baskin.kilty@epa.gov.

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.


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    Dated: November 19, 2020.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2020-26038 Filed 11-25-20; 8:45 am]
BILLING CODE 6560-50-P


