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Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Notices 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 States application based on the requirements of section 402b of the CWA and 40 CFR part 123.
Summary of the States 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 402n3 covering administration of a major category of discharges within the State. The States 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 402n3. 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 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 26.131 was attached as Attachment A to the States application.
In accordance with 40 CFR part 123.21, the States 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 Generals 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 States
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submission. The program description was divided into four 4 chapters:
Overview of the TCEQ, as required by 40 CFR 123.22a and b;
Oil and Gas Permitting Program Description, as required by 40 CFR
123.22c, d and g;
Oil and Gas Enforcement Program Description, as required by 40 CFR
123.22d, e and g; and Program Costs and Funding Description, as required by 40 CFR
123.22b13.
A Statement of Legal Authority, signed by the Texas Attorney General, was included as Attachment C to the States submission. The Statement of Legal Authority outlines the TCEQs 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 TCEQs implementation of amended Tex. Water Code 26.131, the TCEQ defined the term produced water in 30 Tex. Admin. Code 305.541b 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 26.131, in conjunction with the definition of produced water in 30 Tex.
Admin. Code 305.541b and the TCEQs existing authority to issue permits for the discharge of pollutants into water in the state in Tex. Water Code 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 States 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
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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 States submission. Please note that the TCEQ
adopted by reference the EPAs Oil and Gas Effluent Limitation Guidelines 40
CFR part 435.
On November 5, 2020, the TCEQ
submitted revised language to Attachment EChapter 3 Enforcement Program Description for clarification purposes. The revised language did not affect substantive changes to the States program submission and was not a material change under 40 CFR part 123.12c. The revised language clarified that the TCEQs 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 EPAs approval of the States 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 EPAs 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 States 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 EPAs receipt of the States complete program submission, or by January 11, 2021, the EPA was required to approve or disapprove the program based on the
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