State Program Requirements; Approval of Application to Administer the National Pollutant Discharge Elimination System (NPDES) Program; Texas
Federal RegisterSep 24, 1998
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6166-3]
State Program Requirements; Approval of Application to Administer
the National Pollutant Discharge Elimination System (NPDES) Program;
Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Approval of the Texas Pollutant Discharge Elimination System
(TPDES) under the Clean Water Act.
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SUMMARY: On September 14, 1998, the Regional Administrator for the
Environmental Protection Agency (EPA), Region 6, approved the
application by the State of Texas to administer and enforce the
National Pollutant Discharge Elimination System (NPDES) program for
regulating discharges of pollutants into waters of the State. The
authority to approve State programs is provided to EPA in Section
402(b) of the Clean Water Act (CWA). The approved state program, i.e.,
the Texas Pollutant Discharge Elimination System (TPDES) program, is a
partial program to the extent described in this Notice (see section
titled ``Scope of the TPDES Program''). The TPDES program will be
administered by the Texas Natural Resource Conservation Commission
(TNRCC). In making its decision, EPA has considered all comments and
issues raised during the public comment periods. Summaries of the
comments and EPA responses are contained in this notice. The comments
and public hearing record are contained in the administrative record
supporting this notice.
EFFECTIVE DATE: Pursuant to 40 CFR 123.61(c), the TPDES program
authorization was approved and became effective on September 14, 1998.
ADDRESSES FOR VIEWING/OBTAINING COPIES OF DOCUMENTS: The Administrative
Record (Docket 6WQ-98-1) and copies of the final program documents for
the TPDES program are available to the public during normal business
hours, Monday through Friday, excluding holidays, at EPA Region 6's
12th Floor Library, 1445 Ross Avenue, Dallas, Texas 75202. A copy is
also available for inspection from 8:00 a.m. to 5:00 p.m., 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.
Copies of the principal TPDES program documents (MOA, Program
Description, and Statement of Legal Authority) are accessible on the
Internet through the EPA Region 6 Water Quality Protection Division's
web page http://www.epa.gov/earth1r6/6wq/6wq.htm and the TNRCC web page
http://www.tnrcc.state.tx.us.
FOR FURTHER INFORMATION CONTACT: TNRCC expects to have a toll-free
number for people to call with questions regarding the TPDES program
operational by September 21, 1998. The TNRCC number is 1-888-479-7337.
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.
On February 5, 1998, the Governor of Texas requested NPDES major
category partial permit program approval 1 for those
discharges under the authority of the 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. EPA
then proceeded to consider the approvability of the complete program
application package.
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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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The documents were described in the Federal Register Notice of June
19, 1998, (63 FR 33655) in which EPA requested comments and gave notice
of public hearing. Further notice was also provided by way of notices
published in the following nineteen newspapers on various dates from
June 21-26, 1998: Tyler Morning Telegraph; Austin American Statesman;
El Paso Times; Lubbock Avalanche Journal; Forth Worth Star Telegram;
Odessa American; San Antonio Express; Wichita Falls Record-News;
Abilene Reporter News; 10 San Angelo Standard-Times; Dallas Morning
News; Amarillo News; Beaumont Enterprise; Houston Chronicle; Corpus
Christi Caller-Times; Daily Sentinel (Nacogdoches); Brownsville Herald;
Laredo Morning Times; and Longview News Journal.
As a part of the public participation process, both a public
meeting and hearing were held in Austin, Texas, on July 27, 1998. The
public meeting provided as an informal question and answer session, and
began at 1:00 p.m. The hearing started at 7:00 p.m. Oral comments were
recorded during the hearing and are contained in the administrative
record supporting this action. Comments were accepted by EPA on all
aspects of the TPDES program authorization through the close of the
public comment period, which was extended by the Hearing Officer to
August 10, 1998. EPA also accepted comment through August 24, 1998 on
some more detailed clarifying information on resources for the TPDES
program, provided in TNRCC's comments submitted at the July 27, 1998,
public hearing. All comments presented during the public comment
process, either at the hearing or in writing, were considered by EPA in
its decision. EPA's responses to the issues raised during the comment
period are contained in the Responsiveness Summary provided in this
notice. A copy of EPA's decision and its Responsiveness Summary has
been sent to all commenters and interested parties (those persons
requesting to be on the mailing list for EPA actions in Texas).
The Regional 6 Administrator notified the State of the program
approval decision by letter dated September 14, 1998. Notice of EPA's
final decision is being published in the newspapers in which the public
notice of the proposed program appeared (listed above). As of September
14, 1998, EPA suspended issuance of NPDES permits in Texas (except for
those permits which EPA retained jurisdiction as specified below in the
section titled ``Scope of the TPDES Program'').2
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\2\ Had EPA been unable to meet the statutory deadline for
action on the pending NPDES program authorization request (September
14, as extended by the TNRCC), then EPA would have had to suspend
the issuance of NPDES permits on that date (other than for those
activities retained by EPA via our Memorandum of Agreement).
However, failure to meet the deadline would not have meant that the
TNRCC automatically gained NPDES authority. It is EPA's
interpretation that a State agency would not gain NPDES authority
unless and until EPA approves the State program, consistent with CWA
402(b), and 40 CFR 123.1.
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[[Page 51165]]
Scope, Transfer of NPDES Authority, and Summary of the TPDES
Permitting Program
A. Scope of the Partial Program
The TPDES program is a partial program which conforms to the
requirements of Section 402(n)(3) of the CWA. The TPDES program applies
to all discharges covered by the authority of the TNRCC. 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 the 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
retains 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 retains permitting authority and primary enforcement
responsibility over discharges from any CAFOs not subject to TNRCC
jurisdiction. EPA and TNRCC are currently unaware of any CAFOs that are
not under the jurisdiction of TNRCC. However, there is the potential
that certain CAFOs that began using playas as waste treatment units
before July 10, 1991, could claim exemption from State water quality
standards in limited circumstances--effectively removing them from the
jurisdiction of the TPDES program. This issue is discussed in detail in
the response to comments sections of today's notice. EPA is simply
taking this opportunity to inform the public that the Agency will
retain NPDES jurisdiction over any such CAFO that falls outside of
TNRCC's jurisdiction under the TPDES program.
TNRCC does not have, and did not seek, the authority to regulate
discharges in Indian Country (as defined in 18 U.S.C. 1151). EPA
retains NPDES permitting authority and primary enforcement
responsibility over Indian Country in Texas.
B. Transfer of NPDES Authority and Pending Actions
Authority for all NPDES permitting activities, as well as primary
responsibility for NPDES enforcement activities, within the scope of
TNRCC's jurisdiction, have been transferred to the State, with some
exceptions. EPA and the State agreed to these exceptions in the MOA
signed September 14, 1998. In addition to the exceptions listed below,
EPA retains, 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 also retains, 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
3 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 MOA between EPA and the TNRCC
provides that the TNRCC assumes, 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:
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\3\ 40 CFR 123.1(d)(1) uses the term ``jurisdiction'' to
describe the fact that EPA may retain administration over any
permits issued by EPA, and for that reason, the term
``jurisdiction'' is used in this section. However, use of this term
does not mean that EPA retains permit issuance authority for new
permits, or that TNRCC does not have authority to issue TPDES
permits for discharges covered by the permits over which EPA retains
administration.
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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), will 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:
Construction storm water general permit (63 FR 36490), 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, as modified) 4, 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), will 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.
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\4\ The Multi-sector general permit was modified on August 7,
1998, to clarify permit coverage for storm water discharges covered
under Sector G, Metal Mining. A further modification is currently
awaiting publication in the Federal Register to expand the scope of
coverage to all types of facilities previously covered under the
1992 baseline general permit. However, because permit modification
does not trigger the transfer of permit jurisdiction under this
section, the Multi-sector storm water general permit will 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.
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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
[[Page 51166]]
general permits may 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), will transfer 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 does 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 122.26(a)(1)(v). The state has jurisdiction and
permitting authority, including primary enforcement responsibility,
over these discharges.
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), will
transfer 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 temporarily retains NPDES permitting authority, (except as
provided by paragraph 3 below--Facilities with Outstanding Compliance
Issues), over all 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 entered 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 approval. Permitting authority and primary enforcement
responsibility will be transferred to the State as the permits are
finalized.
3. Facilities with Outstanding Compliance Issues
EPA will temporarily retain primary NPDES enforcement
responsibility for those facilities which have any outstanding
compliance issues. EPA will 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 will be
transferred to the state as the actions are finalized. Facilities will
be notified of this retained jurisdiction and again when the file is
transferred to the State. Permitting authority over these facilities
will transfer to the State at the time of program approval.
A list of existing Permittees that will temporarily remain under
EPA permitting jurisdiction/authority is included as part of the public
record and available for review. Texas will continue to provide state-
only permits for those dischargers over which EPA temporarily retains
permitting authority, and which need state authorization to discharge.
No changes were made to the proposed TPDES program documents based
on information obtained in the public comments received. However, TNRCC
did provide some updates to its Continuing Planing Process (CPP) prior
to its approval on September 10, 1998. More information on the CPP and
these updates are found in comments and responses in the Responsiveness
Summary section of today's notice.
Responsiveness Summary
EPA received a large number of comments on this authorization
request. Many comments expressed the concern that the TNRCC may not be
able to implement the program as described in their application package
(e.g., due to possible future resource constraints). While EPA
appreciates the concerns expressed in these comments, conjecture on
future actions is not a basis for program disapproval. Texas has made a
solid commitment to this program and has demonstrated that it meets
minimum EPA requirements. TNRCC is not required to show that its TPDES
program will exceed Federal requirements. Because the federal
requirements are geared to ensure continuous environmental improvement,
this ensures continues water quality improvement under the TPDES
program. As part of its oversight role (including quarterly program
reviews), EPA will review the implementation of the TPDES program to
ensure that the program is fully and properly administered
The following is a summary of the issues raised by persons
commenting on TNRCC's application for authorization of the TPDES
program and EPA's responses to those issues. Due to the interconnected
nature of many issues EPA received comment on, a degree of
repetitiveness was unavoidable in the responses to comments. In an
attempt to minimize redundancy, while still allowing those interested
in a particular aspect of an issue to find an answer to their question,
the responsiveness summary was structured by subject area. This
resulted in related aspects of several issues being addressed in more
than one subject area. Unless otherwise noted, all references to
``MOA,'' ``statement of legal authority,'' ``program description,'' and
``chapter [1-8]'' refer to the corresponding documents in the TPDES
program submittal by TNRCC. Likewise, ``TPDES application'' or
``application'' refers to the TPDES program submittal as a whole.
Unless otherwise indicated, ``the Federal Register notice'' when used
without reference to a specific date or citation refers to the June 19,
1998, notice of Texas's application for NPDES authorization (63 FR
33655-33665).
Overall Support/Opposition Comments
1. Issue: General Statements of Support or Opposition
Many industries, trade groups, and regulated entities in the State
of Texas expressed strong support for approval of the TNRCC application
to administer the NPDES program in Texas. Most of these letters of
support looked forward to the opportunity to reduce the additional
confusion, time and expense of dealing with two regulatory agencies
with largely duplicative permitting systems. Several citizens and
public interest groups sent in strong letters of opposition, requesting
EPA disapprove TNRCC's application. Many of these citizens and
organizations believe the checks and balances of two permitting
programs afford the State's ecosystems and waters, and its citizens, a
greater level of protection than one system run by the State. Many of
the letters EPA received were form letters from citizens
[[Page 51167]]
opposing the authorization of the TPDES program and highlighting two
major concerns: (1) adequacy of TNRCC's resources and commitment to
implement and enforce the program, and (2) concerns about public
participation under the Texas-run program. Several comments, both for
and against, related their information and issues directly to EPA's
specific request in the Federal Register for public input on ten
aspects of the proposed TPDES program (63 FR 33662).
Response: EPA agrees with the regulated public that a single
regulatory agency eliminates duplicative efforts by both the regulated
public and the governmental agencies trying to provide protection for
our natural resources. It was clearly Congress' intent that states have
every opportunity to directly administer the NPDES program and that
EPA's main role would be providing national consistency and guidelines
in an oversight role. EPA was only intended to run the NPDES program
until states could develop programs adequate to protect the waters of
the U.S. To this end, EPA had never been fully funded to do all the
jobs required for full direct implementation of the NPDES program. This
is the responsibility of State-run programs, and provides incentives
for states to take over the program. States that wish to directly
ensure protection of its State resources, and equitable treatment of
its regulated public will take over the responsibilities of the NPDES
program as Texas has applied to do. EPA does understand the concern
citizens may have about State agencies replacing the federal presence.
Some citizens are concerned that states are more easily influenced by
political pressures. Some enjoy the double opportunity to separately
participate in the regulatory process at both the State and Federal
level to ensure protection of the natural resources important to their
health, livelihood, and recreation.
EPA believes that the program outlined by the State of Texas will
provide protection of these resources. EPA intends to work closely with
the State in an oversight role to ensure the described program is
implemented in accordance with the requirements of the CWA. EPA's
continued authority to review and approve water quality standards, the
Continuing Planning Process (CPP), and Water Quality Management Plans,
oversee State-issued permits (and object if necessary), directly
inspect dischargers, and over-file State enforcement actions affords
the same level of CWA protection to the surface waters in Texas as if
there were still separate State and EPA permits. EPA appreciates all of
the input it received on the ten areas it specifically requested
comments on in the Federal Register Notice. The comments below
summarize all of the issues, information, and concerns which EPA
received during the comment period; they include those on these ten
specific topics and others of concern to the public.
In addition, EPA has reviewed comments that were submitted during
the process of reviewing the TPDES program for completeness. Although
these were sent prior to the official comment period, EPA has reviewed
the issues and information in those letters, and incorporated all
relevant issues in this response to comments. EPA has done this to
ensure the public is provided with all the information germane to EPA's
decision. This responsiveness summary serves as EPA's response to
comments on the authorization of the TPDES program.
Issues on Which EPA Specifically Requested Public Input
Public Participation
2. Issue: Limits on Use of Federal Citizen Suits
One comment argued that provisions in Texas law would limit the
ability of the public and local governments to use the citizen suit
provisions of the Clean Water Act. Suggested first is that TNRCC's
provisions for temporary orders or emergency orders could be used to
authorize what would otherwise be a violation, in effect immunizing a
violator from a citizen suit for the violation. The comment asserts
that orders issued in the past under Chapter 7 of the Texas Water Code
``often'' authorized discharges of partially-treated or untreated
wastewater or wastewater with constituent concentrations in excess of
permit standards.
Response: Texas SB 1876 consolidated various statutory provisions
governing emergency and temporary orders under new TWC Chapter 5,
Subchapter L. Although some categories of orders might have been used
in the past regarding pre-TPDES permits to provide exemptions under
State law, Chapter 5 contains specific provisions making this authority
inapplicable to provisions approved under the federal NPDES program.
TWC Sec. 5.509. (See also 30 TAC 35.303). Accordingly, the situations
under which TNRCC will be able to use Chapter 5 emergency orders and
temporary orders under the TPDES program (see 23 TX Reg 6907) will not
result in ``authorizations'' pursuant to new or modified permits, nor
provide a shield to citizen suits. See also specific comment on
emergency orders and temporary orders. EPA will also be provided a copy
of draft emergency and temporary orders for review and approval in
accordance with MOA section IV.C.6.&7. The temporary and emergency
orders also provide for public notice, public comment, and the ability
of affected parties to request a public hearing. EPA does not agree
with the comment's claim that this authority could be used to
``immunize'' violators.
3. Issue: Defenses Under TWC 7.251 Limit Use of Citizen Suits
One comment maintained that the defense under Section 7.251 of the
Texas Water Code limits the use of the federal citizen suit provisions.
The comment argues that federal law, unlike Texas law, does not provide
excuses from violations and requires the operator to be prepared for
reasonable worst case conditions. See also comments on strict
liability.
Response: TWC Sec. 7.251 provides only a narrow defense for
innocent parties. As interpreted by the Texas Attorney General, TWC
Sec. 7.251 in effect requires the operator to be prepared for
reasonable worst case conditions, because it does not excuse violations
that could have been avoided by the exercise of due care, foresight, or
proper planning, maintenance or operation. In addition, the provision
does not shield a party from liability if that party's action or
inaction contributed to the violation. There is a violation where a
permittee allows a discharge to continue, in cases where the permittee
could have taken steps to stop the discharge from continuing, but
failed to do so. There appears to be no reason why the existence of the
narrow defense in this law would impair citizens' right to bring suit.
Moreover, CWA Sec. 505(a)(1) allows citizens to bring suit against
any person alleged to be in violation of an effluent standard or
limitation. As discussed in the Federal Register notice, EPA and the
courts have interpreted the CWA as a strict liability statute. The
defenses outlined in TWC Sec. 7.251 are not recognized in the federal
law. Accordingly, EPA does not believe that the authority in CWA
Sec. 505(a)(1) would be affected by TWC Sec. 7.251.
4. Issue: Potential for Use of Penalties Not Recovering Economic
Benefit to Block Citizen Suits
One comment suggests that Texas law does not require TNRCC to
consider economic benefit in determining the
[[Page 51168]]
amount of a penalty. Therefore, the comment concludes, TNRCC can bring
and has brought civil enforcement actions that seek less than the
economic benefit and can thereby block civil enforcement actions
brought by citizens or EPA.
Response: On page 2 of its July 27, 1998, comments, TNRCC states
that the TNRCC statutory and regulatory authority as interpreted in its
policy for penalties (included in its TPDES application as Appendix 6)
``does consider and account for all the factors required by state and
federal law, including the economic benefit gained through
noncompliance.'' TNRCC also asserts that, although the TNRCC does not
use the same method of penalty calculation as EPA, under its policy,
the actual penalties assessed will be appropriate, will not be
generally or consistently less than those assessed by EPA, and will be
consistent with federal law. EPA believes that the TNRCC's penalty
authority does not prevent the program from satisfying the requirement
in 402(b) of the Act and 40 CFR 123.27 that States have enforcement
authority, including civil and criminal penalties, adequate to abate
violations of a permit or the permit program.
As noted in the Federal Register notice (63 FR at 33664), Texas is
not required to follow EPA's penalty policy. The comment did not argue
that the statutory and regulatory requirements for approval require
that TNRCC's statutory and regulatory procedures for assessing
penalties be identical to EPA's. Accordingly, the comment has not
provided any specific reasons why the TNRCC's authority imposes an
inappropriate limitation on citizen access to CWA Sec. 505.
The same response also applies to the extent that the comment is
arguing that TNRCC's statutory and regulatory penalty authority imposes
an inappropriate limitation on EPA ability to bring an enforcement
action. In addition, as noted in the Federal Register notice, EPA may
over-file as necessary to assure that appropriate penalties are
collected nationwide. EPA reserves the right to over-file if a state
has taken enforcement action but assessed a penalty that EPA believes
is too low, consistent with CWA Secs. 309 and 402(i).
5. Issue: Texas Audit Privilege Act Limits Access to Audit Documents in
Citizen Suit Proceedings
A comment maintained that the Texas Audit-Privilege Law could be
used to block EPA or a citizen from getting an audit through discovery.
More generally, the comment noted that there is no case law holding
that a more restrictive State evidentiary rule would apply in a federal
action brought under the CWA.
Response: EPA does not agree that the Texas Audit-Privilege Law may
apply to EPA enforcement actions or citizen suits that raise federal
questions under the CWA in federal court. The law is an evidentiary
rule that applies to administrative and judicial actions under State
law. EPA believes that this rule would not apply in a federal action,
brought by EPA or a citizen's group, and that under Federal Rule of
Evidence 501, federal procedural requirements would be controlling.
EPA's information-gathering authority under federal law, including CWA
308, is broad and allows the Agency to obtain information as required
to carry out the objectives of the Act. There is nothing in section 308
or 309 of the Act that suggests a State evidentiary rule could be used
to block EPA's use of this information.
There is no reason to think that if the issue came before a federal
court, the court would apply a more restrictive State evidentiary rule
rather than the federal rule. EPA believes it unlikely that the Texas
Audit-Privilege Law will be held applicable in federal enforcement
actions, and the mere ``possibility'' cited by the comment is therefore
not a sufficient basis upon which to deny authorization of the Texas
program. If in the future EPA were to receive an adverse decision on
this issue, the Agency could consider its options at that time,
including requesting Texas to revise its law.
6. Issue: Public Comment on Inspections
A comment expressed the concern that by deferring negotiation of
the annual inspection plan, the public has no opportunity to comment,
thereby ``deny[ing] Texas citizens due process of law.''
Response: EPA does not believe that the regulations define, with no
flexibility, a precise number or type of inspections that must occur.
Rather, as explained elsewhere, the regulations require States to show
that they have ``procedures and ability'' to inspect all major
discharges and all Class I sludge management facilities, where
applicable. 40 CFR 123.26(e)(5). Thus, the regulations require a
showing of capacity and a commitment to a level-of-effort for
inspections, reserving discretion to the two sovereign governments to
decide what number of inspections to undertake, and the identity of the
facilities to be inspected. These judgments are matters of enforcement
discretion, which are not reviewable, and the exercise of which do not
raise due process issues. (See Heckler v. Chaney, 470 U.S. 821, 832
(1985))
7. Issue: Overview of Public Participation Issues
EPA received comments from seven different individuals or groups,
concerning the public participation aspects of the proposed Texas NPDES
authorization. Four similar comments expressed the opinion that Texas
had established regulations and procedures that provided extensive
public participation and, in fact, provided more opportunity to
participate than required by the federal rules. One comment stated that
there were extensive deficiencies in the State's statutes and rules in
a number of separate areas regarding public participation requirements.
These included issues regarding State standing not being as broad as
federal standing, inadequate rules and procedures governing notice and
comment for permitting and enforcement actions, and the State's
inability to provide adequate information in a timely manner when
claimed confidential by a permittee. Two additional comments raised
concerns about the State failing to adequately address complaints and
respond to comments, and one was concerned about the adequacy of the
Texas standing statute and regulations.
Response: Responses are provided in the sub-issues below.
8. Sub-issue on Public Participation: Inadequate Notice and Comment of
Permitting Actions
Several comments expressed concern that Texas' requirements for
public notice and comment of permitting actions were not adequate for
program assumption.
Response: EPA believes that they are adequate. EPA has carefully
reviewed, based on the issues raised by the comments, Texas'
requirements for public notice and comment of permitting actions found
at 30 TAC Chapters 55 and 80. These provisions were enacted to ensure
that Texas could meet the requirements of 40 CFR 123.25. As several
comments asserted, TNRCC has enacted several revisions to its notice
and comment procedures and EPA has found that the Texas regulations in
this area meet the requirements of 40 CFR 123.25. One comment stated
that there were differences between EPA's rules and TNRCC' rules
concerning notice and comment in this area but did not identity what
those differences were, and EPA in its review of the matter
[[Page 51169]]
could not identify any such differences. One comment also noted that
TNRCC had streamlined its public participation procedures so as to
``get government off the back of industry,'' thereby eliminating public
participation. Once again, there was no specific TNRCC rule or policy
identified and no statement as to what specific authorization
requirement of EPA's is not being met. Our review of Texas rules has
not identified any such conflict and TNRCC's rules, as identified
above, meet CWA requirements.
9. Sub-issue on Public Participation: TNRCC Consideration of Public
Comments on Permitting Actions
Several comments expressed doubt that TNRCC will sincerely consider
public comments on permitting actions.
Response: TNRCC is clearly required by Sec. 55.25(c) to consider
and, where appropriate, make changes to proposed permitting actions
based on public comments. If an aggrieved party feels that TNRCC does
not act appropriately, the party can often appeal the decision to the
appropriate civil court (TWC Sec. 5.351). In addition, EPA will be
providing oversight of the Texas NPDES program, as it does every
authorized program, to help ensure compliance with the authorization
requirements.
10. Sub-issue on Public Participation: Adherence to Federal
Requirements for Notice and Comment of Permitting Actions
One comment stated that Texas' program was deficient because the
Texas program does not strictly adhere to all elements of EPA's policy
or provisions of 40 CFR Part 25 involving public participation.
Response: EPA disagrees Texas is deficient in this area.
Requirements on public participation for authorized programs are
included in 40 CFR Part 123, State Program Requirements, including
requirements for permitting, compliance evaluation and enforcement
efforts. Neither the early 1981 EPA policy statement nor the full
content of 40 CFR Part 25 cited in the comment constitute requirements
for state programs.
11. Sub-issue on Public Participation: Opportunities for Public
Participation in Enforcement Actions
One comment stated that Texas law does not provide the required
opportunities for public participation in enforcement actions.
Response: EPA disagrees. Texas has elected, in accordance with 40
CFR 123.27, to provide for public participation in enforcement actions
by providing assurances that it will (1) investigate and provide
written responses to all citizen complaints, (2) not oppose permissive
intervention, and (3) provide 30 days' notice and comment on any
proposed settlement of an enforcement action. (See 40 CFR 123.27) TNRCC
has procedures and/or enacted regulations to implement all of these
requirements. (See 30 TAC 80.105, 109, and 254; see also Texas Water
Code Ann. Sec. 5.177 for complaint process)
12. Sub-issue on Public Participation: Definition of Settlement in
Enforcement Actions
One comment stated that the above rules failed to define
``settlement'' and therefore were too vague to provide effective public
participation.
Response: EPA does not find this to be a defect in the Texas
program. First, it should be noted that the term ``settlement'' is not
defined in EPA regulations. EPA also notes that both EPA and TNRCC
regulations state that there will be notice and comment upon
``settlement of enforcement actions.'' (See, 40 CFR 123.27(d)(2)(iii)
and 30 TAC 80.254) EPA believes this provides a sufficient definition
of the type of settlement covered (i.e., any agreement between parties
resolving an agency enforcement action). Also, TNRCC stated in its
preamble in adopting 30 TAC 80.254 that, while ``settlement'' was not
defined in the regulations, it believed that settlement has a well
known meaning and stated settlement means ``the resolution of issues in
controversy by agreement instead of adjudication.'' EPA does not find
this definition to be at odds with the intent of its authorization
criteria in this area. EPA does note that the comment did not state
what kind of ``settlement'' of an enforcement action the TNRCC was
failing to notice and comment, but it is clear the proper regulation is
in place and TNRCC's interpretation of the rule is acceptable.
13. Sub-issue on Public Participation: Publication of Notices Only in
the Texas Register
One comment noted that TNRCC's decision to publish notice and ask
for comments on proposed settlements of enforcement actions in the
``Texas Register only'' does not provide effective notice.
Response: EPA believes that the use of the Texas Register provides
adequate notice and meets the intent of the authorization criteria.
While the comment does not explain reasons for this view that the Texas
Register is not adequate, EPA finds notice in the Texas Register to be
acceptable and, indeed, EPA and the Department of Justice provide for
notice of its civil judicial settlements in the Federal Register.
Registers provide a place where all citizens may go to inform
themselves of actions proposed by various governmental bodies. TNRCC's
use of this system is appropriate and provides effective public
participation by using this statewide method to inform its citizenry of
its proposed settlements.
14. Sub-issue on Public Participation: Permissive Intervention in
Enforcement Actions
Some comments stated that the permissive intervention provision in
80 TAC 109 was inadequate because the rule stated that intervention
would not be allowed where it would unduly delay or prejudice the
adjudication.
Response: EPA disagrees with this assertion. Rule 24(b) of the
Federal Rules of Civil Procedure contains the very same language. In
addition, EPA's own rules on intervention found at 40 CFR 22.11(c)
contain the very same language. It is important for administrative law
judges and officers to have the ability to protect the rights of all
parties and ensure that cases are administrated appropriately. Contrary
to the comment's assertion, undue delay or prejudice have well-defined
meanings in the case law. EPA does not feel that the use of these two
terms creates a public participation problem. EPA fully expects that
the state administrative law officers will appropriately apply these
standards.
15. Sub-issue on Public Participation: TNRCC Executive Director's
Control Over Enforcement Petitions
A comment expressed concern about the provision in the Texas
regulation that states only the Executive Director may amend or add to
the violations alleged in the petition. See 80 TAC 115.
Response: EPA disagrees with the comment that this prevents
effective and meaningful public participation. As seen above,
permissive intervention may have certain justifiable restrictions. It
would seem that TNRCC seeks to reserve its enforcement discretion in
determining which violations it will pursue with its enforcement
resources. In addition, an intervening party has full rights to present
evidence, especially as to the appropriate penalty amount and, even
more importantly, the appropriateness of any required compliance or
corrective action that may be included in a settlement or order issued
to bring the facility into full compliance with the regulations. In
addition, CWA Sec. 505 allows a citizen to bring suit in federal court
with regard to
[[Page 51170]]
any violation of the approved state program which the state is
diligently prosecuting. This ensures an effective process whereby
violations not addressed by the state agency may be resolved.
16. Sub-issue on Public Participation: TNRCC Authority to Promulgate
Regulations Affecting Public Participation in Enforcement Actions
Two comments also raised the issue that TNRCC did not have
statutory authority to promulgate the regulations and that there were
certain procedural defects in the promulgation of some of its
regulations. There was a specific concern regarding the state
regulation allowing permissive intervention in enforcement actions.
Response: TNRCC has broad authority under the Texas Water Code
Secs. 5.102, 5.103, and 5.112 and Chapter 26 to promulgate rules to
protect the waters of the State and to provide for public participation
in carrying out this legislative purpose. Clearly it was TNRCC's
intent, when it added the permissive intervention rule, to meet EPA's
requirement for public participation in enforcement actions. The Texas
Attorney General has issued an opinion stating that TNRCC has the
authority to implement the federal NPDES program. Promulgations are
entitled to a presumption of regularity and EPA accepts the state's
assurances that they were valid. Further, these regulations have been
fully promulgated and are currently effective, and, therefore, this
could not be a basis on which to deny authorization. If the State is
challenged in court on this matter and receives an adverse ruling
striking down the permissive intervention regulation or any other state
regulation required to maintain this federally authorized program, the
State would be required to remedy any defect in order to maintain
program authorization.
17. Sub-issue on Public Participation: Public's Right to Appeal
Settlement of an Enforcement Action
A comment stated the State did not provide a right to appeal a
settlement of an enforcement action subsequent to the notice and
comment period.
Response: EPA does not believe this raises an authorization
problem. 40 CFR 123.27(d)(2)(iii) does not require the state to provide
an appeal procedure based on public comment in the settlement of an
enforcement action. Nor does EPA provide such an appeal right in its
administrative cases. In fact, EPA does not provide for notice and
comment on CWA administrative case settlements at all, much less a
right to appeal a settlement on that basis. EPA believes as a policy
matter that it is important for the public to be able to raise concerns
and issues regarding the settlement of enforcement cases so as to give
the prosecuting agency an opportunity to reconsider its settlement
decision if new, significant and material facts are brought to light.
Having said this, an enforcement settlement agreement is significantly
different from a permitting action. The safeguards to ensure public
participation also can be different. 40 CFR 123.27(d)(2)(iii) regarding
administrative enforcement settlements does not require that an appeal
process be available. In 40 CFR 123.30, EPA specifically requires that
civil judicial appeals of permitting decisions be provided by
authorized states. There are other safeguards or public participation
avenues available such as the right to permissive intervention and
anyone who intervenes clearly has a right to appeal the settlement
decision in a case to which he or she is a party. The Agency believes
that another significant safeguard that provides assurances that
comments will be properly considered is that prior to final entry of
the settlement a judge (in a civil action) or the administrative law
officer or commissioners must approve a settlement. (See TWC
Sec. 7.075) These officials normally have broad authority to take
notice of any fact or information, including public comments, to ensure
that any settlement they recommend or sign is in the public interest
and not contrary to law or statute. This is certainly the case in the
federal courts. Citizens for a Better Environment, 718 F.2d 1117, 1128
(D.C. Cir.) 1983, cert. denied 467 U.S. 1219 (1984).
It should also be noted that CWA civil judicial settlements are not
required by statute to be subject to notice and comment, but notice and
comment is provided for in accordance with 28 CFR 50.7 and this
Department of Justice regulation does not provide for an appeal
process.
18. Sub-issue on Public Participation: Texas ``Standing'' Requirements
Several comments expressed concern that Texas' requirements for
``standing'' in permitting and enforcement procedures limited public
participation.
Response: As one comment pointed out, EPA has been concerned with
state standing requirements and EPA believes that ``broad standing to
challenge permits in court to be essential to meaningful public
participation in NPDES programs.'' (61 FR 20976, May 8, 1996) EPA
issued a rule providing the standard for States that administer NPDES
programs regarding ``judicial review of approval or denial of
permits.'' 40 CFR 123.30, as follows:
``States * * * shall provide an opportunity for judicial review
in State Court of the final approval or denial of permits by the
State that is sufficient to provide for, encourage, and assist
public participation in the permitting process. * * * A State will
meet this standard if State law allows an opportunity for judicial
review that is the same as that available to obtain judicial review
in federal court of a federally-issued NPDES permit [see Sec. 509 of
the Clean Water Act]. A State will not meet this standard if it
narrowly restricts the class of persons who may challenge the
approval or denial of permits. * * *''
Id. (emphasis added) EPA was concerned during its review of Texas'
draft NPDES submissions that the State law governing citizen
standing in Texas judicial proceedings would not meet the applicable
standard. In response to issues, the State Attorney General examined
applicable law and gave his opinion that Texas law is substantially
equivalent to the federally-prescribed standard. This opinion can be
found in the Statement of Legal Authority by the Texas Attorney
General. The Texas Attorney General has stated that civil judicial
standing in the Texas courts is the same as associational standing
in the Federal courts and very similar to the federal requirement
for individual standing. The AG has supported his opinion by
reviewing the Texas case law in this area. Considering the current
state of the case law, EPA finds the AG's evaluation sufficient to
support the Agency's conclusion that the program meets the
requirements of 40 CFR 123.30, and gives the evaluation deference.
According to the Attorney General, an Attorney General Opinion
carries the weight of law unless and until it is overruled by a
state court. (Attorney General Dan Morales, ``Legal Matters'' (last
modified July 1998)) --http://www.oag.state.tx.us/WEBSITE/NEWS/
LEGALMAT/9807opin.htm_An Attorney General Opinion is entitled to
great weight in courts. See Jessen Assoc., Inc. v. Bullock, 531
S.W.2d 593, 598 fn6 (Tex. 1975); Commissioners' Court of El Paso
County v. El Paso County Sheriff's Deputies Ass'n, 620 S.W. 2d 900,
902 (Tex. App.-El Paso 1981, writ ref.n.r.e.); Royalty v. Nicholson,
411 S.W. 2d 565, 572 (Tex. App.-Houston [14th Dist.] 1973, writ ref.
n.r.e. The Attorney General's authority to issue legal opinions is
governed by the Texas Constitution, Article 4, section 22, and the
Texas Government Code Secs. 402.041-045.
It should be noted that State law provides two avenues of appeal of
an NPDES permit: (1) the evidentiary hearing process, which is subject
to appeal in accordance with Texas Administrative Procedure Act (APA),
Texas Government Code Ann. Sec. 2001.001 et. seg. and (2) a direct
appeal to state court based on comments TWC Sec. 5.351. The ``affected
person'' provisions of TWC Sec. 5.115(a) and 30 TAC 55.29 apply only to
evidentiary
[[Page 51171]]
hearings and not to an appeal of an NPDES permit directly to state
court based on comments. The court would decide standing based on State
case law; therefore, EPA is determining approval of this element of the
Texas program on the basis that at a direct appeal to civil judicial
courts is provided for permitting actions under Texas law and the civil
courts will determine standing based on the common law. The public is
not required to file for an evidentiary hearing. Therefore, there is a
direct avenue of appeal via the public comment process (TWC section
5.351), and EPA is basing its evaluation of standing on that appeal
right.5
---------------------------------------------------------------------------
\5\ Although it was not necessary for EPA to review the standing
requirements of the evidentiary hearing process, the Agency notes
with approval the recent Texas Court of Appeals decision in Heat
Energy Advanced Technology, Inc. et al., v. West Dallas Coalition
for Environmental Justice, 962 S.W.2d 288 (1998 Tex. App.) regarding
standing in the evidentiary hearing process under the ``affected
person'' provisions of 30 TAC section 55.29.
---------------------------------------------------------------------------
As part of EPA oversight of this program, we will be carefully
reviewing any state court rulings in this area that may be handed down
to ensure that standing and the appeal process continue to meet the
requirements of 40 CFR 123.30. Should the Texas Supreme Court, which
has not yet directly addressed the question of individual standing,
ultimately articulate a test that is more restrictive than the federal
standard, EPA will need to reconsider the adequacy of the public
participation elements of the Texas NPDES program.
19. Issue: Impediments to Public Access to Permitting and Enforcement
Information
One comment asserts that public access to permitting and
enforcement information may be impaired where confidentiality claims or
state agency information processes slow access or prevent access to
information.
Response: The comment correctly asserts that ``Texas law for public
access to information is generally equivalent to the federal law,'' and
instead complains about perceptions of information mismanagement. These
are not issues which impede authorization of the state program (TPDES),
but do present matters which state and federal environmental officials
will want to monitor during program implementation. The comment asserts
that the state environmental agency is unwilling to summarily deny
claims of business confidentiality or, in some cases, fails to do so in
a timely manner. EPA has determined that Texas Open Records Act and
EPA's regulations (40 CFR Part 2) are substantially equivalent. In both
agencies, confidentiality decisions are made by the legal office, not
the permit program. The permitting authority has little control over
how or when this determination will be made. This issue has arisen from
time to time during EPA's permitting process and EPA, where it is
reasonable to do so, has suspended permit issuance during the
resolution of claims of business confidentiality for permit application
data. The facts surrounding these claims should be reviewed carefully
by permit issuing entities. Actions should be taken to ensure
information is made available to the public and that confidentiality
claims do not prevent the public from being able to make informed
comments. TNRCC can and should examine the equities of doing so, but
this is not a program authorization issue. Similarly, the comment
correctly asserts that ``on paper TNRCC's central records system could
be adequate,'' but then complains that in fact it is not, noting ``a
history of problems with the management of files'' by that agency. The
comment asserts that TNRCC has implemented a record ``retention''
policy, a feature of most public record systems, including EPA's (e.g.,
see 40 CFR 2.105(b)). We agree with the comment that TNRCC has made
recent efforts to improve its record's management, filing, and public
responsiveness and EPA will continue to review this process during
program oversight to ensure that any barriers which might arise to
timely public access to information are addressed.
Texas' Regulatory Flexibility Under Texas Water Code 5.123
20. Issue: Texas' Regulatory Flexibility under Texas Water Code 5.123
(Senate Bill 1591)
EPA received several comments indicating that TWC Sec. 5.123
(Senate Bill 1591) does not affect EPA's ability to approve the TPDES
program. TWC Sec. 5.123 gives 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 also received two comments claiming that Sec. 5.123
would prevent EPA from approving the TPDES program. One comment in
support of approval believes that the assurances from the Texas
Attorney General and TNRCC are sufficient to address EPA's concerns,
and that implementation of Sec. 5.123 should not interfere with the
approval of Texas' application to administer the NPDES program in
Texas. The two other comments expressed belief that the MOA language is
unnecessary, but support its addition if EPA believes that it will
clarify the issue.
Of the two comments opposed to approval on the basis of TWC
Sec. 5.123, one alleges that because Sec. 5.123 allows TNRCC to waive
any state standard or requirement, including water quality standards
and reporting requirements, EPA cannot approve the Texas program. The
comment also states that EPA cannot approve a program that includes
Sec. 5.123 because the regulatory flexibility given to TNRCC makes it
impossible for EPA to determine what standards TNRCC will apply in any
situation. The comment also notes that the phrase ``not inconsistent
with federal law'' is not defined in TWC Sec. 5.123. Furthermore, the
comment claims that the assurances given by the Texas Attorney General
and TNRCC are insufficient to repeal or nullify the clear language in a
Texas law. The other comment opposes approval because of the
flexibility given to TNRCC to exempt firms from State statutory and
regulatory requirements.
Response: In the Federal Register Notice, EPA discussed the
implications of TWC Sec. 5.123, which, as discussed above, gives TNRCC
flexibility to exempt from State statutory or regulatory requirements
an applicant proposing an alternative method or alternative standard to
control or abate pollution. As part of its application, Texas submitted
a supplemental statement from its Attorney General stating that TWC
Sec. 5.123 does not authorize TNRCC to ``grant an exemption that is
inconsistent with the requirements for a federally approved program.''
This statement of the Attorney General is persuasive and entitled to
consideration. See Jessen Associates, Inc. v. Bullock, 531 S.W. 2d 593
(TX 1975). TNRCC also submitted a letter from TNRCC Commissioner Ralph
Marquez, clarifying TNRCC's position that TWC Sec. 5.123 does not
authorize TNRCC to grant permits or take other actions that vary from
applicable federal requirements. Because TNRCC is charged with
implementing TWC Sec. 5.123, its interpretation is also entitled to
great weight. (Yates Ford, Inc. v. Ramirez, 692 S.W.2d 51 (TX 1985)).
In MOA Section III.A.22, TNRCC states that ``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
[[Page 51172]]
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.'' Failure to comply with the terms and
conditions of the MOA is grounds for withdrawal of the NPDES program
from Texas (40 CFR 123.63).
Based on the foregoing, EPA believes that the assurances and
interpretations given by the Texas Attorney General (the chief law
officer of the State) and TNRCC are sufficient to assure that TNRCC
will not use TWC Sec. 5.123 to approve an application to vary a federal
requirement or a State requirement which implements a federal program
requirement under section 402(b) of the Clean Water Act, or the EPA
regulations implementing section 402(b). If TNRCC's ability to vary
state statutes and regulations does not include those statutes or
regulations which encompass the federally approved TPDES program, there
would be no effect on the federally approved TPDES program. If there
would be no effect on the federally approved TPDES program, there is no
reason to disapprove the Texas application on this basis.
Furthermore, both the Texas Senate and House Committee Reports for
S.B. 1591 (TWC Sec. 5.123) support this conclusion. According to these
Reports, the purpose of S.B. 1591 was to give TNRCC the authority to
exempt companies from those state requirements which exceed federal
requirements (emphasis added). The alternative requirements would have
to be at least as protective of the environment and public health as
current standards. As the Reports state:
``This legislation provides specific statutory authorization for
state programs which exceed federal law to serve as models for
regulatory flexibility. This authorization is important for
delegation of the federal Title V air-permitting program to Texas,
so Texas can allow flexibility in those areas where Texas law
exceeds federal law.'' (Senate Committee Report--Bill Analysis (S.B.
1591)--4/4/97; House Committee Report--Bill Analysis (S.B. 1591)--4/
29/97)
Because the language and the legislative history of TWC Sec. 5.123
do not support an argument that this provision would allow the State to
waive federal requirements, we conclude that TWC Sec. 5.123 does not
render the TPDES program unapprovable.
In addition, TNRCC recently published regulations implementing TWC
Sec. 5.123 (23 TexReg 9347, September 11, 1998). In the preamble to
those regulations, the TNRCC addressed the issue of whether the
regulations could be interpreted to allow TNRCC to vary federally
approved programs without EPA approval as follows:
The commission * * * reiterates that orders entered under the
authorizing statute, Water Code Sec. 5.123, and this rule will not
conflict with legal requirements for federally delegated or
authorized programs. Neither the authorizing statute nor this rule
authorizes the commission to grant an exemption that is inconsistent
with the requirements for a federally approved program. The attorney
general of Texas has so informed EPA, in his letter dated March 13,
1998, concerning the commission's application for NPDES
authorization. As EPA points out in its comment, to vary the
required elements of a federally authorized program without federal
approval would violate (that is, be inconsistent with) federal law.
As the attorney general noted, the authorizing statute does not
authorize this.
This interpretation by TNRCC is also entitled to great weight.
Yates Ford, Inc. v. Ramirez, 692 S.W. 2d 51 (TX 1985). While it may
have been clearer to the public and the regulated community had the
TNRCC included in the regulations EPA's suggested language on this
point, EPA is satisfied that the State's interpretation is consistent
with EPA's. As part of our oversight function, EPA will ensure that the
Texas Regulatory Flexibility Rules are implemented in a manner that
fully conforms to the interpretation set out in the preamble to those
rules, and in the letters to EPA referenced above.
Texas' Defense to Liability for Acts of God, War, Strike, Riot, or
Other Catastrophe
21. Issue: 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. One comment asserts that Texas law creates defenses to
violations that are not compatible with EPA's minimum federal
requirements for state NPDES programs. Specifically, the comment argues
that States must have authority to seek injunctions for violations and
to assess or seek civil penalties appropriate to the violation. The
comment argues that the affirmative defense in TWC Sec. 7.251 creates a
barrier to that enforcement authority, and is therefore prohibited.
The comment also asserts that the State application violates 40 CFR
123.27(b)(2), which requires that ``the burden of proof and degree of
knowledge or intent required under State law for establishing
violations under paragraph (a)(3) of this section, shall be no greater
than the burden of proof or degree of knowledge or intent EPA must
provide when it brings an action under the appropriate Act.'' In other
words, State law should not include additional elements of proof for
civil violations.
The comment further suggests that approving a Texas program that
includes TWC Sec. 7.251 countervenes an EPA interpretation set out in a
1982 settlement agreement with NRDC. Finally, the comment suggests that
the defenses under Texas law will restrict citizens' ability to file
citizen suits for violations.
Response: The comment's major concern appears to be that the
defenses in TWC Sec. 7.251 are ``inconsistent with federal requirements
for holding a permittee responsible for the release of pollutants.''
EPA raised similar questions during its review of the TNRCC program
authorization package. In response to those concerns, the State
provided two clarifications: an addendum to its Attorney General's
statement and a letter from TNRCC Commissioner Ralph Marquez, both of
which are included in the administrative record to this action.
As interpreted by the Texas Attorney General, TWC Sec. 7.251
provides an affirmative defense under State law only if the event
causing the discharge was 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, and it would not prevent the imposition
of penalties for a violation persisting after the original force
majeure event ceases to be the sole cause of the discharge (e.g., in
the case of a continuing discharge).
Under State law, the State of Texas would have the ability to bring
an enforcement action to address violations when the facility owner or
operator should have taken steps to prevent the discharge by care and
foresight, proper planning, or maintenance. For example, if the event
could have been anticipated--such as a 50-year flood in a 50-year flood
plain, or the need to provide training on pollution control equipment
for replacement workers used during a strike-- and the owner did not
take proper precautions, then the failure to have done so could subject
the owner or operator to an enforcement
[[Page 51173]]
action.6 The Agency disagrees with the comment's statement
that ``vandalism can be used as a defense, apparently, even if such an
action could have been anticipated or if the entity responsible for the
discharge did not take an appropriate response to the risk of vandalism
to minimize the size or impact of the discharge.'' Such a scenario
contemplates a discharge that could have been prevented through proper
planning and foresight, and the owner or operator's failure to exercise
that planning or foresight would render the defense unavailable to him.
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\6\ These general comments should not be construed as an opinion
on any specific set of facts, such as in the Crown Central case
cited in the comment.
---------------------------------------------------------------------------
The State has also demonstrated that TNRCC has the authority to
enjoin any discharges or to order the cleanup of those discharges. As
discussed in EPA's Federal Register notice, the Attorney General's
Statement explains that TWC Sec. 7.251 does not affect a court's
authority to issue an injunction to enforce any TWC requirement or
prohibition, including the requirement that a party comply with any
permit, rule or order issued by the TNRCC. 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. Thus, the Agency believes that the
State had demonstrated adequate authority to seek injunctions as
required in 40 CFR 123.27.
TWC Sec. 7.251 applies only to actions brought under state law, but
does not provide a defense to enforcement actions brought by EPA or
citizens pursuant to the federal CWA. As discussed in the Federal
Register notice of the TPDES application (63 FR 33662), the federal CWA
is a strict liability statute recognizing as a defense to liability
only the federal upset defense (at 40 CFR 122.41(n)), which is a very
narrow affirmative defense for violations of technology-based effluent
limitations.
EPA does not view TWC Sec. 7.251 as a defense to liability under
the federal CWA, and indeed, the Attorney General has stated that the
language of Sec. 7.251 will not be placed into TPDES permits. EPA also
does not view Sec. 7.251 as affecting the burden of proof for
establishing a violation under State law. The burden of proof is
unchanged from the federal system, and the elements of proof are
unchanged. Rather, Sec. 7.251 merely establishes a potential
affirmative defense under State law. The person asserting the defense
must assume the burden to plead and prove the defense. This means
showing that the discharge was caused entirely by other persons or by
factors over which they had no control, and that the discharge was not
reasonably foreseeable or preventable. As noted in the Federal Register
notice, even EPA would rarely seek penalties in such cases.
As to the comment's assertion that the Texas law is inconsistent
with an alleged EPA interpretation set out in a 1982 settlement
agreement with NRDC, without more specific information, EPA has been
unable to locate this reference. However, as discussed above, the
interpretation of Texas laws by the Attorney General recognizes that
the federal CWA is a strict liability statute, and the Texas statute
does not affect that standard of liability.
EPA also disagrees that the defenses under Texas law will restrict
citizens' ability to file citizen suits for violations. As noted above,
the affirmative defense language of TWC Sec. 7.251 will not be
incorporated into NPDES permits. Texas could not allow discharges
disallowed by federal law; accordingly, TWC Sec. 7.251 would not remove
violations of federal law from the scope of CWA Sec. 505(a). Thus, the
CWA's citizens suit provision affords those in Texas the same right and
opportunity to bring citizens suits as those in other States.
Inspections
22. Issue: Inspection Commitments
Some comments expressed support for the TNRCC inspection strategy,
stating that inspections should be focused on those facilities not
meeting permit limitations, and on impaired watersheds. However, others
State that TNRCC should be required to perform inspections on 100% of
the ``majors'' and Class I sludge facilities annually. They also state
that TNRCC does not have adequate resources to inspect the required
universe of facilities. In addition they State that TNRCC has failed to
allocate resources to inspect enough CAFOs, pretreatment programs,
``92-500 minors'' (smaller municipal wastewater treatment plants built
with federal construction grants authorized under Public Law 92-500),
and to adequately respond to citizen complaints.
Response: In Chapter V of the MOA TNRCC states it has the
procedures and ability in place to inspect the facilities of all major
dischargers and Class I sludge facilities. TNRCC's statement is
consistent with 40 CFR 123.26(e)(5). However, EPA's guidance on
inspection coverage recognizes that minor Permittees may also cause
significant risks to the environment and human health, and some
resources may be shifted to inspect them. Any shift in resources must
be negotiated and agreed upon between EPA and TNRCC annually.
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. As discussed in more detail below, the TNRCC will also have
to demonstrate environmental benefits of inspecting other facilities,
such as, improved compliance of targeted facilities in priority
watersheds and decreased loadings of pollutants of concern. 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.
EPA has reviewed the resource allocation for inspections, and
believes that the 27 existing FTEs (full time equivalent, e.g., one
person working 40 hours per week or two people working 20 hours per
week), 12 new FTEs which will be hired following authorization, and 14
(nine existing and five additional) inspectors dedicated to sludge,
CAFOs and pretreatment, will be adequate. In discussions with TNRCC
regarding their July 27, 1998, submittal, TNRCC staff stated that the
30 inspections referenced assumes there are other activities that the
staff must perform annually. If these factors were not taken into
consideration, then inspectors would be able to perform more than the
indicated 30 inspections per year. The federal regulations do not
require a State to make specific commitments for CAFO, pretreatment or
minor inspections. Additionally, in its July 27, 1998, submittal
providing additional detail, TNRCC indicated that they would inspect
approximately 24% of the pretreatment facilities in the first year and
38% in the second year. As part of annual inspection negotiations EPA
will further discuss the adequacy of these inspection numbers.
23. Issue: Potential Misuse of Annual Inspection List
Some comments oppose a proposed annual agreement between EPA and
[[Page 51174]]
TNRCC regarding inspection commitments in which an inspection plan
would be developed that would list the facilities to be inspected
annually. They believe that such a list would allow the regulated
community to know which facilities would be inspected annually, thereby
reducing the incentive for compliance.
Response: EPA and TNRCC annually work together in developing a list
of major and minor dischargers which will be inspected. The Agencies
will continue to do so as described in Chapter V of the MOA. TNRCC
currently has and will continue to have a notification policy under
which a facility is notified one to two weeks prior to a State
inspection. However, any facility that will be inspected by EPA or
inspected jointly by EPA and TNRCC will not be notified. Further, EPA
does not agree that the list of facilities to be inspected will be
known prior to the inspections. Texas Government Code, Chapter 552,
describes the circumstances under which information can be withheld
under the Texas Public Information Act. The Texas Attorney General
makes this decision. This is addressed on Page 6 of the MOA. Under the
Federal Freedom of Information Act, the list of inspections to be
performed are considered enforcement confidential and are not released
to the public.
24. Issue: Discrepancy between MOA and Federal Register Notice
Regarding Inspection Plan
One comment noted that there was a discrepancy between the Federal
Register notice and the MOA regarding the proposed inspection plan.
Specifically, the Federal Register notice indicated TNRCC would have to
demonstrate water quality improvements as a result of shifting
resources from major inspections to minor inspections. The MOA does not
specifically State this.
Response: The inspection plan discussed in the MOA will be the
framework for annual negotiations of a comprehensive enforcement
agreement between the two agencies regarding the number and type of
inspections, type of facilities to be inspected, location of facilities
(watersheds) etc. If TNRCC proposes to shift some inspection resources
from major to minor dischargers, it must demonstrate to EPA that this
strategy--in conjunction with other water program efforts set forth in
their plan--will result in environmental benefits over time, such as
improved compliance rates of targeted facilities in priority watersheds
and decreased loadings of pollutants of concern. If over time, these
efforts do not show such improvements, then EPA and the TNRCC will
reassess the proper allocation of inspection resources between major
and minor dischargers as part of the annual inspection plan
negotiations.
Timely and Appropriate Enforcement
25. Issue: Timely Enforcement
Some comments assert that TNRCC will not complete enforcement
actions in a timely manner and has only committed to initiating such
actions in a timely fashion. While some comments assert that TNRCC does
have a program that will ensure that timely and appropriate actions
will be taken, they also note that EPA does not in all cases take
timely and appropriate action.
Response: EPA encourages States to adopt its guidance on timely and
appropriate enforcement actions, however, the federal regulations do
not require States to adopt EPA guidance. To address EPA's concerns
with TNRCC in these areas, language is included in the MOA that states
that in cases where TNRCC cannot meet the timely and appropriate
criteria in EPA's Oversight Guidance, TNRCC agrees to notify EPA. EPA
reserves its right to take timely and appropriate enforcement if TNRCC
fails to finalize its actions in a timely manner (see MOA Part V.E.).
In cases where EPA believes a formal action must be taken, EPA
initiates timely and appropriate action. However, there are instances
when formal action is not appropriate, e.g., facility has returned to
compliance, facility is on a long-term construction schedule and is
compliant with the schedule, etc.
26. Issue: Enforcement on Small Businesses
One comment states that TNRCC has ``not committed to enforce
adequately against small businesses, given the limitations in Chapter
2006, Subchapter A of the Texas Water Code.''
Response: Chapter 2006, Subchapter A of the Texas Government Code
requires a state agency that is considering adoption of a rule that
would have an adverse economic effect on small businesses to reduce
that effect if doing so is legal and feasible. EPA does not find this
subchapter limits TNRCC's ability to enforce against small businesses.
Subchapter A of Chapter 2006 does not apply to enforcement actions
brought against ``small businesses'' as defined by the Texas Government
Code. There is nothing to indicate the TNRCC is not committed to
enforcing its statutes, rules, orders, permits, and other
authorizations no matter the size of the permitted entity.
27. Issue: TNRCC Commitment to Use EPA's SNC Criteria
One comment stated that TNRCC has not committed to use EPA's
significant noncompliance criteria (SNC), and has not developed the
procedures or ability to utilize the national database, the Permit
Compliance System in a timely manner.
Response: TNRCC has committed to prepare the Quarterly
Noncompliance Reports (QNCR) in accordance with the federal regulations
at 40 CFR 123.45. In order to prepare the QNCR, TNRCC will be required
to report facilities in reportable noncompliance (RNC), per 40 CFR
123.45. The more serious (due to magnitude or duration) Significant
Noncompliance (SNC) violations make up a subset of RNC violations. As a
result, TNRCC will have to use the SNC definition as SNC facilities in
Texas will be automatically flagged by PCS. Training of TNRCC staff on
the operation of PCS has been ongoing, and the Region 6 offices will
continue to provide necessary training and support after program
assumption by TNRCC.
TPDES Penalties
28. Issue: Adequate Penalties
Some comments expressed belief that TNRCC does not have the
procedures to assess adequate penalties and to collect economic benefit
gained through the violations. Others state that the TNRCC penalty
authority is adequate and does ensure that no party gain an unfair
economic advantage by avoiding noncompliance, but support EPA's right
to over-file.
Response: Although EPA urges the states to implement penalty
authority in a manner equivalent to EPA's, it is not required by the
regulations or the Clean Water Act. While authority to collect economic
benefit exists, TNRCC's policy allows for mitigation of penalties to
zero in some instances. Therefore, there is no guarantee that economic
benefit, at a minimum, will be collected by TNRCC in all cases. Through
its oversight role EPA will work with the TNRCC to ensure that the
penalties collected under the TPDES program are consistent with those
required by the NPDES program including, where appropriate, the
collection of an economic benefit. In cases where EPA believes
appropriate penalties have not been assessed, EPA has reserved its
right to over-file in accordance with CWA Secs. 309 and 402(i).
[[Page 51175]]
29. Issue: TNRCC SEP Policy
One comment implied that TNRCC's Supplemental Environmental Project
(SEP) Policy is inconsistent with EPA's policy.
Response: TNRCC is not required by regulation or statute to have a
SEP policy that is equivalent to the EPA policy. In any event, on pages
6-14 of the TPDES Enforcement Program Description, TNRCC has cited
potential SEP projects that are comparable to projects that would be
approved under the EPA policy. In cases where TNRCC approves an
inappropriate SEP that results in an inadequate penalty, EPA reserves
its right to over-file in accordance with CWA 309 and 402(i).
30. Issue: Appropriate Penalties
One comment stated that EPA penalties against builders and
developers are excessive. In addition they are concerned with EPA's
ability to over-file because they would ``never really know'' what the
penalty amounts would be for specific violations.
Response: The Clean Water Act sets statutory maximum penalties that
would be used in litigation, and EPA utilizes its Clean Water Act
Settlement Penalty Policy to calculate the minimum penalty for which
the Agency would be willing to settle a case. The policy has provisions
for addressing type of violation, duration, size of business, and
ability of business to pay a penalty. This penalty policy is applied
equally to all CWA enforcement including the construction ``industrial
activity'' category (x) as found at 40 CFR 122.26(b)(14)(x). Due to EPA
retaining administration of EPA-issued MS4 and storm water general
permits, TNRCC responsibility for enforcement of the bulk of the storm
water program will not begin for approximately two years (when the
first of these permits expires). At that time, EPA will review the
penalties assessed in these actions as part of its oversight authority,
to assure that the penalty amounts are adequate to abate violations of
a permit or permit program (40 CFR 123.27), EPA has reserved its right
to over-file if they believe an adequate penalty has not been assessed.
31. Issues: Improper Barrier to Recovery of Penalties Where Violator
Gained Economic Benefit From Violation
One comment alleged that the Texas audit privilege act establishes
an improper barrier to recovery of penalties for violations where the
violator gained an economic benefit from the violations.
Response: 40 CFR 123.27(a) and (c) require the State to have the
authority to recover civil penalties for violation of any NPDES permit
condition, filing requirement, regulation, or order as well as to
assess civil penalties which are appropriate to the violation. Section
10(d)(5) of the Texas Audit privilege act [Tex. Civ. Statute art.
4447cc (1998)] allows recovery of civil or administrative penalties for
``substantial economic benefit which gives the violator a clear
advantage over its business competitors.'' This language will enable
Texas to obtain civil penalties appropriate to the violations,
including those resulting in a substantial economic benefit. For those
dischargers engaged in business competition, the law would also require
proof of clear advantage deriving from that economic benefit. Under
section 10(g) of the law, the enforcement authority does not bear the
burden of proof concerning exceptions to immunity stated in section
10(d).
32. Issue: Improper Barrier to Recovery of Penalties for Continuous and
Repeat Violations
One comment expressed concerns that the Texas audit privilege act
would impose barriers to recovery of penalties for continuous and
repeat violations.
Response: There is no civil or administrative penalty immunity
under Texas Civil Statutes Article 4447cc if the disclosure ``has * * *
repeatedly or continuously committed significant violations, and * * *
not attempted to bring the facility or operation into compliance, so as
to constitute a pattern of disregard of environmental [law].'' To show
a ``pattern,'' the entity must have ``committed a series of violations
that were due to separate and distinct events within a three-year
period at the same facility or operation.'' By its terms, this
provision provides Texas with authority to address continuous
violations and repeat violations. Texas also retains authority to
address all violations by issuing administrative or judicial consent
orders and by seeking penalties for any subsequent violation of such
orders.
Independent Applicability of Water-Quality-Based Limits
33. Issue: Application of Water Quality Standards for Discharges Not
Subject to a Technology-Based Effluent Guideline
Several comments supported EPA's conclusion that TNRCC had the
authority, and had actually committed to apply water-quality based
effluent limitations regardless of whether or not there was a
promulgated technology-based effluent guideline for a particular
discharge. However, these comments also stated that there was no
objection to EPA and TNRCC clarifying this issue in the MOA.
Response: EPA appreciates the support expressed by the comments and
repeats the Agency's position for the benefit of those members of the
public that did not review the June 19, 1998, Federal Register notice.
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 (emphasis
added). 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 was
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, the
following language is included in Section IV.B of the MOA:
``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 will function in a manner
consistent with EPA's interpretation of the requirements of the CWA and
its implementing regulations.
TPDES Resource Needs
34. Issue: Generic Comments on Adequacy of TNRCC Resources
Some comments stated belief that TNRCC had provided adequate
information to address funding issues. Other comments expressed concern
over TNRCC's ability to run their TPDES program without the use of
federal funds. They also claimed that TNRCC had not adequately
demonstrated that
[[Page 51176]]
they had sufficient resources or staffing to assume the program on the
day of program assumption.
Response: Pursuant to the requirements of 40 CFR 123.22(b), the
State of Texas submitted 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. That submittal
indicated that 217 full time employees would be tasked with different
aspects of the program, and that $12.3 million in funding would be
available to run the program. Prior to the comment period on the
proposed TPDES program, the Agency received letters from two concerned
parties suggesting that more detail was needed to fully understand how
the personnel and funds set out in the Texas application were to be
used. EPA agreed that it would be helpful to understand more fully such
information and, thus, asked the State to provide additional detail (63
FR 33664).
The State did so in comments submitted at the public hearing on the
proposed State program approval on July 27, 1998, and made copies
available to many of the attendees. The State's comments were also made
available on July 28, 1998, at both the TNRCC and EPA offices. EPA
further took the step of sending copies of the State submittal to all
persons who had attended the public hearing or who had commented on the
State program. To allow time for any additional comment on the resource
question, the Agency extended the comment period on that single issue
from August 10 until August 24, 1998.
Chapters 2, 6, 7, and Appendix 7-A, of the Program Description
provided detailed information on TNRCC's organizational structure,
positions, projected costs, and sources of funding, including a
projection of enforcement resource needs. TNRCC has acknowledged, on
page 8 of the MOA, that it is their responsibility after program
approval to run and manage the TPDES, Pretreatment and Sewage Sludge
programs with or without the assistance of Federal funding. The Federal
regulations require States seeking program approval to submit an
itemization of the sources and amounts of funding, ``including an
estimate of Federal grant money,'' expected to be available for the
first two years of program administration (40 CFR 123.22(b)(3)); the
State of Texas has provided this information.
EPA has reviewed the resources TNRCC will devote to the TPDES
program, the staffing requirements and qualifications, and the training
necessary to utilize existing staff to operate the program on day one,
and determined that TNRCC has the capacity to administer the program
upon assumption. As part of EPA's oversight responsibilities, the
agency will monitor the resources TNRCC is devoting to the TPDES
program to ensure compliance with the regulatory requirements for a
state-run program.
35. Issue: Under-Funding of TNRCC's Permitting Program
Several of the comments contend that the water quality permitting
program is woefully underfunded. In its August 27th comments, the State
provided an explanation of how the resources dedicated will be
marshaled to administer the NPDES program.
Response: In its July 27 letter, the TNRCC discussed with great
specificity why the resources described in Chapter 7 of its application
would be sufficient to administer the NPDES program in Texas. In
Exhibit A of that letter, the TNRCC used ``the number of [permit]
applications processed'' as the most accurate measure of the work they
could process. Looking at the prior ten-year period, the TNRCC found
that an average of 727 applications were processed each year, not
including NPDES permits processed for EPA under a Federal grant. While
noting that permit applications in some areas of the State (principally
central Texas) had increased, TNRCC expected the total number of
permits required state-wide would remain relatively constant. TNRCC
pointed to the workload-leveling effect of its basin permitting rule
and its intent to expand use of general permits as justification for
this assumption. Based on the total number of permits, they estimate
approximately 651 permit renewals per year. Using these figures, the
TNRCC concludes that it has adequate staff to handle the needs of the
NPDES program:
``Assuming that the permitting universe will remain static at
3256 permits [given the movement toward issuing general--rather than
individual--permits and other reasons set out by TNRCC], TNRCC
predicts that an average permit writer would need to be responsible
for processing 30 renewal permits each year (65121.5). Ample
staffing is available to additionally process incoming new or
amendment requests, since an existing staff of 18.5 has historically
processed an average of 39 permits/person/year (72718.5).''
(July 27, 1998, letter, Exhibit A.)
The TNRCC went on to explain that new personnel positions in
several categories have been funded in order to carry out the NPDES
program. Taken together, the information provided by the State appears
to demonstrate adequate resources to implement the NPDES program in
Texas.
As a sub-point, a comment expresses concern that the application
does not account for the resources necessary to process the
approximately 3,000 NPDES applications now pending at EPA Region 6 that
are to be transferred to the State. In response, as the comment
concedes, it is somewhat unfair to ask the State to show readiness to
pick up an entire program prospectively and to demonstrate that it can
eliminate a backlog not of its own creation; other states seeking
authorization have not been asked to make such a showing. However, it
is EPA's understanding that Texas does plan to eliminate the backlog
over the course of one permitting cycle (five years). Under the status
quo pre-authorization, every discharger that has (or should have) a
Federal NPDES permit has (or should have) a water permit under State
law. Thus, as the State proceeds to renew or issue permits (in
accordance with the State watershed priority system approved by EPA),
it will in effect replace two permits (one State and one Federal) with
one State-issued TPDES permit. The TNRCC explained its plan to address
the EPA backlog as follows:
``In effect, EPA has allowed a situation where a significant
number of discharges were never authorized under NPDES. These
applications are to be passed to TNRCC for processing. This load of
applications is assumed to equate to applications for the same
discharges also received by the state. As TNRCC works on its own
applications, it will also be combining the workload and eliminating
EPA's backlog.'' (July 27 letter, Exhibit A., p.2)
36. Issue: Workload Analysis
Some public comments argued that States must provide a detailed
workload analysis as required by EPA guidance.
Response: EPA agrees that its guidance asks that States set out
their resources in the form of a workload analysis; however, this is
not a requirement of statute or regulation. In any event, the State
provides a workload analysis in response to EPA's request for
additional detail on the application. (See July 27 letter, Exhibit D.)
37. Issue: Future Resources for Storm Water Program
One comment expressed concern that TNRCC does not currently have
resources to operate the storm water program in Texas and has not
``laid out any clear plan for obtaining them over a specified period of
time.'' This comment also expressed concern that TNRCC would not
immediately have adequate resources for inspection of
[[Page 51177]]
storm water permittees they will administer upon authorization. In
response to EPA's request for public input on future resource needs,
TNRCC submitted comments that contained an acknowledgment that
additional resources will be needed when EPA-issued storm water general
permits and municipal separate storm sewer system permits expire and
administration transfers to the State. TNRCC pointed out that the Texas
legislature has already authorized increases in permit fees, contingent
upon NPDES authorization. TNRCC also stated in its comments that ``* *
* appropriations for the storm water permitting program elements
initiated in fiscal year 2001 will be an exceptional item request in
the TNRCC LAR [legislative appropriations request] for 2000-2001.''
Response: At the time of program assumption, EPA will only transfer
administration of those storm water discharges included as part of an
individual industrial permit to TNRCC. EPA will continue to administer
discharges authorized under municipal separate storm sewer permits and
storm water general permits for some time after program authorization.
Administration of discharges covered by EPA's multi-sector storm water
general permit transfers by October 1, 2000. Administration of
discharges covered by EPA's construction storm water general permit
transfers by July 6, 2003. Administration of discharges covered by
EPA's permits for the nineteen municipal separate storm sewer systems
in Texas starts to transfer in 2000, but most of these permits will not
expire until 2003. Therefore, TNRCC will not need additional resources
for permitting and enforcement on storm water-only discharges right
away. Since administration passes at the time each storm water permit
expires, or earlier if TNRCC issues a replacement permit, TNRCC's
permit fee program would be available to provide resources. Under
TNRCC's current procedures for conducting inspections, storm water
outfalls at industrial facilities (the permits that would transfer to
TNRCC at program authorization) are routinely included in the overall
inspection of the facility.
EPA also notes that while, as with any governmental agency, TNRCC
is dependent on funding by a legislature that has sole power on
appropriations, it has committed to seek additional resources for these
resource needs. On August 19, 1998, the TNRCC formally adopted its
Legislative Appropriations Request (LAR) for the 2000-2001 biennium.
Included is a request for additional appropriation authority for full
State implementation of the NPDES storm water program using the
existing permitting options available to TNRCC. For FY 2000, TNRCC has
requested $3.4 million and 58 additional positions. For FY 2001, the
request increases to $4.2 million and a total of 80 positions. These
staffing levels and budget estimates are based on the existing
limitations in State law regarding the use of general permits for storm
water discharges (which could easily exceed the current 500,000 gallons
per day cap allowed for a general permit issued by TNRCC under TWC
Sec. 26.040). Both agencies understand that this initial request is
subject to change if the current statutory limits on the use of general
permits are removed or modified.
38. Issue: Statements to the Legislature
Several comments assert that TNRCC's statements seeking additional
funding for deficient parts of the Water Quality Program (which the
comment describes as ``core elements of the NPDES/TPDES program'')
demonstrate that the proposed TPDES program is underfunded.
Response: In TNRCC's letter of July 27, the TNRCC explains that
wastewater permitting is only one of the State's water resource
programs, and that permitting discharges covered by NPDES is only part
of the wastewater permitting program (other water programs include the
development of surface water standards, water quality assessment,
modeling, etc.). According to TNRCC, the legislative initiative
referred to by the comments ``related to other aspects of the [the
State's] water programs,'' other than TPDES.
With specific regard to the NPDES program, the State indicated that
``the funding and positions (44 FTEs) had already been determined and
authorized by the Legislature''; the reference to the NPDES program,
and the 44 new FTEs associated with it, was included to make clear that
the resource needs for the water quality programs were in addition to
the resources already authorized for NPDES.
The TNRCC letter also points out that the testimony before the
State legislature expressed a lack of financial support that affects
the agency's ability to fulfill its statutory responsibilities at
``optimal levels,'' not its ability to run its water programs at levels
that meet federal standards. Virtually all agencies--including EPA--
frequently make the case for additional resources without implying that
they are not performing their duties on an acceptable level.
39. Issue: Resources Beyond 2 Years
Some comments assert that more detail is required on those
resources that will be required to run the storm water program,
administration of which will pass to Texas in the fall of the year
2000. Others allege that despite the fact that TNRCC has not yet
submitted its legislative appropriations request for 2000-2001, the
TNRCC should have submitted at least reasonably detailed projections of
wastewater permitting, data management and field inspection resource
needs for FY 2000, which the comment sees as the second year of any
TPDES program that could be authorized at this point.
Response: The federal regulations only require the State to provide
information on the first two years of the program--i.e., FY 1999 and FY
2000. See 40 CFR 123.22. The State submitted a complete package on May
5, 1998, triggering EPA's statutory review period which was to end on
August 3, 1998.7 The State provided resource information for
the two fiscal years running from September 1, 1998 to August 31, 1999,
and from September 1, 1999 to August 31, 2000. The federal regulations
do not require States to submit resource data for more than two years.
---------------------------------------------------------------------------
\7\ By letters dated July 10, 1998, and July 28, 1998, EPA and
TNRCC agreed to extend the deadline by which EPA must make a final
decision on the State's request for approval of the TPDES program
until September 1, 1998. In an August 31, 1998, letter from Jeffery
Saigas, TNRCC Executive Director, to Gregg Cooke, EPA Regional
Administrator, the TNRCC agreed to give EPA additional time (until
September 14, 1998) to complete its approval review.
---------------------------------------------------------------------------
For the ``out years'' (more than two years after approval), as EPA
noted in the June 19 Federal Register notice, the State will need to
provide adequate resources for this period in a timely manner, and the
State (in its July 27 letter) expressed the intention to do so.
Specifically, the TNRCC indicated that it would seek--above and beyond
the base budget of FY 1999, which already includes some increases--
appropriation authority for administration of storm water permits in FY
2001. (If a state were to fail to ensure adequate resources to
administer an authorized program, there could be potential grounds for
program withdrawal under 40 CFR 123.63.)
40. Issue: Resources for Laboratory Chemists
One comment stated that TNRCC does not have an adequate number of
laboratory chemists to perform TPDES program functions, and provides no
details on the personnel and positions.
[[Page 51178]]
Response: TNRCC provided information on the allocation of resources
for the laboratory in Figure 2-1, Tables 1 and 2, of the Program
Description, which shows the staffing level for the laboratory will be
nine chemists, one laboratory manager, and one Quality Assurance
Specialist. The description of these personnel and positions are
included in Appendix 7-A and 7-B of the Program Description. EPA finds
that this level of laboratory support does not prevent the TPDES
program from functioning, especially since laboratory services could
also be contracted out, if necessary due to intermittent surges in
demand.
41. Issue: Comparisons with Other State's Program Resources
One comment states that TNRCC has a much higher facility to FTE
ratio than either Louisiana or Oklahoma, and that this indicates the
TPDES program is underfunded.
Response: As discussed above, EPA does not agree that the TPDES
program is underfunded at this time. In addition to the facility to FTE
comparison, EPA also reviewed the resource allocations for the
enforcement program by job functions such as inspections and compliance
monitoring. As stated in the response to comments regarding inspection
commitments, EPA believes that the 27 existing FTEs for inspections,
the 12 new FTEs which will be hired following authorization, and 14
inspectors dedicated to sludge, CAFOs, and pretreatment, will be
adequate to run the NPDES inspection program. EPA did however, have
some concerns regarding the adequacy of FTEs allocated for compliance
monitoring activities and as a result, requested additional information
from TNRCC. In TNRCC's July 27, 1998, submittal of additional detail,
TNRCC indicated that in addition to the seven FTEs already available
for compliance monitoring, they had three FTEs that could provide
additional support if needed. EPA agrees with the comment that the
facility to FTE ratio is higher in Texas than in Louisiana and in
Oklahoma, but based on the original submittal, the July 27, 1998
clarification, and the fact that only about 54.5% of the minors, 94.6%
of the 92-500 minors, and 52.7% of the major facilities will be
transferred to TNRCC within the first two years, EPA believes that
TNRCC will have the capacity to administer the program for the first
two years.
42. Issue: Adequacy of Resources for Compliance Monitoring
One comment alleges that TNRCC analyzed the adequacy of its
resources for ``compliance monitoring'' on the basis of only doing
reporting for majors, significant minors and 92-500s, or approximately
718 facilities. The comment notes that compliance monitoring functions
must be performed, however, for all NPDES permits for which TNRCC takes
action, and that TNRCC, therefore, seriously understated the universe
of facilities that the reporting staff must cover.
Response: NPDES states are only required to track majors, 92-500
minor facilities, and significant minors in PCS. TNRCC has indicated in
their July 27, 1998, submittal that they have three additional
positions available that can be used for compliance monitoring
functions. Based on the July 27, 1998, submittal and the original
package, EPA has determined that TNRCC has the capacity to perform
compliance monitoring on those facilities which they will receive
during the first two years.
Funding Sources Available for the TPDES Program
43. Issue: Funds Raised From Increased Permit Fees
Some comments indicate encouragement regarding the State
Legislature's support for increased funding for the TPDES Program
through an increase on the annual cap related to wastewater fees.
Others commented that any increases in fees should be related to
services actually rendered to that permittee.
Response: EPA can only require that the TPDES program be adequately
funded. Choices as to the sources of the fund, e.g., general revenue
taxes, permit fees, etc., are at the discretion of the Texas
Legislature. It would be neither appropriate, nor constitutional, for
the federal government to dictate exactly how a State government must
fund its State programs. TNRCC also has the authority to raise fees
assessed on numerous permittees who currently pay a fee far below the
$25,000/year cap set by the Texas Legislature, should federal grant
funds decrease substantially.
44. Issue: Funds for Water Quality Programs
Some comments also expressed concerns that a permit fee-based
funding mechanism would not adequately account for increased funding
needs related to general water quality programs which are not tied
directly to a single permit.
Response: The TPDES application and associated supplemental
documentation is reflected in TNRCC's application for FY 99 funding in
support of its overall water quality program. Much of this funding is
expected to be obtained through TNRCC's Performance Partnership Grant
(PPG). Commitments associated with the PPG are included in TNRCC's FY
99 Performance Partnership Agreement (PPA). The PPA is a carefully
negotiated document which is designed to be consistent with all
statutes, regulations, and formal agreements associated with affected
programs. Accomplishment of commitments included in the PPA and
achievement of environmental results related to those commitments is
reported by TNRCC and tracked by an oversight team at EPA. Any
identified problems are addressed through renewed negotiation and
appropriate follow-up actions.
Environmental Justice
45. Issue: Concerns Regarding Environmental Justice in Implementation
of the TPDES Program
A few comments raised the issue of environmental justice. One
comment asserted that EPA has failed to carry out its legal
responsibilities under the President's Executive Order on Environmental
Justice (E.O. 12898) in that EPA did not consider the impacts of
approval of Texas' application on minority and low-income communities.
This same comment also noted E.O. 12898 is based on Title VI of the
Civil Rights Act, and that EPA has promulgated regulations implementing
Title VI. Another comment asserted E.O. 12898 requires EPA to reject
Texas' NPDES application, unless TNRCC can demonstrate that it has
``made environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health and environmental effects of its programs, policies, and
activities on minority populations and low-income populations. * * *''
(E.O. 12898, Sec. 1-101).
Response: EPA is committed to upholding the principles of
environmental justice contained in the President's Executive Order on
Environmental Justice and to ensuring compliance with Title VI of the
Civil Rights Act, as amended, by recipients of EPA assistance. EPA
believes that it has carried out its legal responsibilities and
maintains that it has advocated environmental justice to the full
extent of its legal authority in this action. EPA notes that nothing in
the Clean Water
[[Page 51179]]
Act, E.O. 12898, or Title VI of the Civil Rights Act requires the
Agency to reject Texas' application for lack of an environmental
justice program. As one comment noted, the Clean Water Act and EPA's
implementing regulations do not require that a State have a specific
program or method for addressing environmental justice issues. Thus,
EPA may approve a program that lacks an environmental justice program
entirely. EPA has encouraged TNRCC to include an environmental justice
program as part of its proposed TPDES program. In a letter dated
February 6, 1998, TNRCC indicated that it did have an environmental
justice program, although that program is not a part of the TPDES
application.
Additionally, EPA notes that the obligations of E.O. 12898 to make
``environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health and environmental effects of its programs, policies, and
activities on minority populations and low-income populations * * *''
apply to Federal agencies, not the TNRCC, as was suggested by one
comment. (E.O. 12898, Sec. 1-101). Furthermore, the obligations of E.O.
12898 are to be implemented in a manner consistent with, and to the
extent permitted by, existing law. The Executive Order does not, by its
own terms, create any new rights, benefits, or trust responsibility,
substantive or procedural. (E.O. 12898, Secs. 6-608, 6-609). Thus, EPA
cannot go beyond the authority granted to it by the Clean Water Act in
making its decision to approve or reject Texas' proposed program.
Finally, as one comment noted, EPA has promulgated Title VI
implementing regulations that prohibit the recipients of EPA assistance
from using criteria or methods of administering federally funded
programs in a manner that results in discriminatory effects based on
race, color, or national origin. See, 40 CFR Part 7. Also, EPA can
provide TNRCC help in complying with the non-discrimination provisions
of Title VI of the Civil Rights Act. These implementing regulations
also set forth the process by which aggrieved parties may file
complaints with the EPA. This is the proper process to by which to
address individual claims under Title VI.
Other Statutory and Legal Issues
Issue: TNRCC Authority Over Discharge of Pollutants
One comment asserted that Texas lacks the authority to prohibit the
range of discharges that are prohibited under federal law. In
particular, the comment argues that Section 26.121(a) of the Texas
Water Code does not enable TNRCC to prohibit discharge of pollutants
that do not (1) qualify as sewage or recreation, agricultural, or
industrial wastes or (2) qualify as ``other waste,'' within the meaning
of Section 26.121(b), because they do not meet the definition of
``pollution'' found in Section 26.001 of the Texas Water Code. Section
26.001 defines ``pollution'' to mean ``the alteration of physical,
thermal, chemical, or biological quality of, or the contamination of,
any water in the State that renders the water harmful, detrimental, or
injurious to humans, animal life, vegetation, or property or to the
public health, safety or welfare, or impairs the usefulness or the
public enjoyment of the water for any lawful or reasonable purpose.''
The comment argues that the showing of harm, detriment, or injury
required by this definition impermissibly renders the scope of the
Texas discharge prohibition less expansive than required by federal
law.
Response: EPA agrees that the definition of ``pollution'' found in
Section 26.001 of the Texas Water Code renders the prohibitions found
in Section 26.121(a) of the Code less expansive than federally
required; however, Texas has resolved this problem by enacting revised
Sections 26.001 and 26.121 that take effect upon NPDES program
authorization. The revised Section 26.121 contains a subsection (d)
that states:
``Except as authorized by the commission, no person may
discharge any pollutant, sewage, municipal waste, recreational
waste, agricultural waste, or industrial waste from any point source
into any water in the state.''
While the sewage and waste definitions remain unchanged, the
revised Section 26.001 adds a definition of ``pollutant'' (as opposed
to ``pollution'') that matches, almost word-for-word, our definition of
``pollutant'' found at 40 CFR 122.2. Accordingly, Section 26.121(d) of
the Texas Water Code enables Texas to prohibit the full scope of
pollutants that Texas must be able to prohibit under federal law.
46. Issue: Conflicts of Interest
One comment contended that ``Texas does not meet the requirements
for conflicts of interests and other ethical limitations for TNRCC
decision-makers for NPDES programs.'' The comment also specifically
asserted that the appointment of Rafael B. Marquez as Commissioner of
the Texas Natural Resource Conservation Commission by Governor George
Bush on May 1, 1995, was not, or is not, in compliance with Federal
requirements for State programs.
Response: Section 304(i)(2)(D) of the Clean Water Act and 40 CFR
123.25(c) constitute the Federal authorities for the proposition that
no State board or body with authority to approve permit applications
shall include (or will include at the time of approval of the State
permit program) as a member any person who receives, or who has
received during the past two years, a significant portion of his income
directly or indirectly from permit holders or applicants. Specifically,
40 CFR 123.25(c) states:
``State NPDES programs shall ensure that any board or body which
approves all or portions of permits shall not include as a member
any person who receives, or has during the previous two years
received, a significant portion of income directly or indirectly
from permit holders or applicants for a permit.''
EPA's analysis of the Texas Water Code, specifically Sections
5.052, 5.122, 5.053, 5.054, 5.059 and 5.060, as well as 30 TAC 50.33
satisfies the Agency that the State has met the Federal conflict of
interest requirements. Specific attention was given to the appointment
of Rafael B. Marquez as Commissioner of the Texas Natural Resource
Conservation. TWC Sec. 5.053(b), which is effective upon authorization
of NPDES permit authority, states:
``In addition to the eligibility requirements in subsection (a)
of this section, persons who are appointed to serve on the
Commission for terms which expire after August 31, 2001, must comply
at the time of their appointment with the eligibility requirements
established under 33 U.S.C. Sections 1251-1387, as amended.''
The terms of all Commissioners currently appointed to the TNRCC
expire on or before August 31, 2001. However, only Commissioner Marquez
was not subject to the current conflict of interest rule at the time of
his appointment. Commissioner Marquez was appointed and confirmed in
May, 1995 and during that calendar year received a significant portion
of his income from Monsanto Company, his former employer and a permit
holder. Since 1995, Commissioner Marquez has received no portion of his
income from a permit applicant or a permit holder. Therefore, more than
two years have passed since a potential conflict of interest could have
existed. Accordingly, we believe the provisions of Section 304(i) of
the Clean Water Act have been satisfied in that more than two years
have passed since Commissioner Marquez last received
[[Page 51180]]
significant income from a permit holder. His first participation in the
TPDES process will take place after a two-year period in which he
received no portion of his income from a permit applicant or a permit
holder. Furthermore, since his term expires prior to August 31, 2001,
the provisions of Section 5.053(b) of the Texas Water Code regarding
compliance ``at the time of * * * appointment'' are inapplicable as to
Mr. Marquez. It should also be noted that, under Section 5.054,
Commissioners may be removed for failure to maintain the qualifications
required for their appointment.
The State of Texas has provided other assurances that the Federal
conflict of interest provisions will be carried out. Commissioners'
standards of conduct are set forth in Chapter 572 of the Texas
Government Code, which requires personal financial disclosure and
prohibits conflicts of interest. These safeguards closely resemble
Federal standards of conduct and set forth similar procedures for
oversight and reporting.
EPA Region 6 has also received the Texas Attorney General's opinion
regarding conflict of interest issues associated with the contemplated
assumption of NPDES authority by the State of Texas. Based on this
opinion, and our own assessment, we are satisfied that no conflict of
interest exists.
47. Issue: Improper Partial Phased Program
Some citizens and organizations commented that the proposed TPDES
partial program is improperly ``phased.'' The comments reach this
conclusion by arguing that (1) the Texas program, although partial,
would not be a ``major category partial program'' within the meaning of
subsection 402(n)(3), and (2) the program, although not a ``major
component partial program'' within the meaning of subsection 402(n)(4),
would still be phased.
The comments first assert that the program would be partial because
it would not cover those discharges regulated by the Texas Railroad
Commission. Nonetheless, the comments contend that the program would
not meet the requirements of subsection 402(n)(3) because it would not
cover all discharges within the jurisdiction of TNRCC. In particular,
the contention is that the proposed Texas program does not cover
discharges from CAFOs into play as, certain Municipal Separate Storm
Sewer System (MS4) discharges, and storm water discharges associated
with industrial activity.
Next, the comments contend that the program would not meet the
requirements of 402(n)(4) because TNRCC does not commit to assume
jurisdiction over the discharges regulated by the Texas Railroad
Commission. Nonetheless, the comments also assert that the Texas
program would still be phased. They contend that various alleged
inadequacies in TNRCC authority and resources leave the agency with no
choice but to phase-in parts of the proposed program.
Response: CWA Sec. 402(n)(3) allows EPA to approve a ``major
category partial permit program,'' while authorization of a ``major
component partial permit program'' is permissible under CWA
Sec. 402(n)(4). A major category partial permit program is commonly
called a ``partial program'' and CWA 402(n)(3) describes that a State
(or agency of a state) may apply for that portion of the NPDES program
for which it has jurisdiction, as long as it reflects all of that
agency's jurisdiction, and includes a significant number of the point
source categories regulated under NPDES. A major component partial
permit program [CWA 402(n)(4)] is commonly called ``phased'' because it
allows a State to take that portion of the NPDES program for which it
has jurisdiction, so long as it commits and sets forth a plan for
obtaining authority to regulate (consistent with CWA) the rest of the
point source categories under the CWA within a 5-year period. These two
options were included in the CWA to allow states like Texas, with more
than one agency regulating categories of point sources, to apply for
NPDES program authorization for at least one of its agencies, and
follow, either in the phased approach, or completely separately, its
other regulatory agencies. Since the program described by Texas in its
application covers all discharges subject to the NPDES program that are
under the authority of the TNRCC, the TPDES program is a ``major
category, partial permit program'' (i.e., partial) and not a ``major
component partial program'' (i.e., phased).
The Texas application does describe a program for the regulation of
CAFO, storm water, and all wastewater discharges under the authority of
the TNRCC. Texas describes the processes for issuing and enforcing all
permits in the program description and makes the necessary commitments
to issue needed general and individual permits in the MOA (see Part
III.A of the MOA). Moreover, the Texas program would not categorically
exclude coverage of any class of CAFO discharges. The language in the
Federal Register Notice describing the Texas program application was
merely intended to indicate that EPA believed that there was the
potential (discussed in the response to specific comments on this
issue) that certain CAFOs that began operation prior to July 10, 1991,
could fall outside the authority of the TNRCC. The Agency's intent was
merely to provide notice to the public that any such CAFOs would remain
under the jurisdiction of EPA. Accordingly, the Agency believes that
the program described in the TPDES application covers all discharges
within the jurisdiction of the TNRCC and, therefore, qualifies as a
major category partial permit program under subsection 402(n)(3).
Nonetheless, the comments assert that the Texas program would be
impermissibly phased because TNRCC allegedly (1) lacks the resources
and staff, and (2) has failed to issue general permits necessary to
administer parts of the described program. Subsection 402(n)(4) of the
Act provides that a State regulatory agency may phase into its program
permitting authority for those types of point source discharges over
which it does not yet have jurisdiction. While the TNRCC has agreed
under 40 CFR 123.1(d)(1) that EPA would retain jurisdiction to
administer particular storm water permits that have already been
issued, TNRCC proposes to immediately assume permitting authority over
all types of point source discharges within its jurisdiction. The fact
that the EPA has retained jurisdiction to administer certain storm
water permits that have already been issued does not mean that the
State Program is ``phased'' the State Program would be ``phased''
within the meaning of subsection 402(n)(4) only if it proposed to
assume jurisdiction to issue permits for an entire class of point
source discharges at some date after program approval. Under 30 TAC
281.25, Texas adopted by reference 40 CFR 122.26, requiring NPDES
permits for storm water discharges. As noted above, TNRCC would have
the authority to issue permits for all types of point source discharges
within its jurisdiction on the date of program approval; accordingly
the program, although partial, would not be phased.
48. Issue: TNRCC Emergency Orders and Temporary Orders
One comment included examples of how TNRCC has, and uses, the
authority to issue temporary or emergency orders under TWC Chapters 5
and 26 to authorize discharges in excess of permit limitations or where
there is no permit to authorize a discharge. The comment
[[Page 51181]]
noted that under federal law, a discharge cannot be made except in
compliance with the authorization granted by a permit. The comment
expressed concern that such orders would authorize what would otherwise
be a violation of an existing permit and could be used to authorize a
discharge without following the procedures and requirements for permits
(including requiring compliance with technology and water quality
standards). The comment further indicated that such actions by Texas
would eliminate reporting requirements for violations of the original
permit (limiting availability of information to the public) and would
also ``immunize'' a violator from a citizen suit for the violation.
Response: On July 3, 1998, Texas proposed regulations implementing
TWC, Chapter 5, Subchapter L, concerning temporary and emergency orders
(23 TexReg 6899). EPA has reviewed these proposed regulations and has
found them to be consistent with requirements to authorize the TPDES
program. Specific restrictions on the use of temporary and emergency
orders to anticipated bypasses in the TPDES program, consistent with
CWA requirements, have been continued in the proposed revisions to 30
TAC 35.303. Under 30 TAC 305.21 (Consolidated Permits), TNRCC would
also have the authority to allow temporary or emergency orders for
discharges to waters--subject to the restrictions of the 30 TAC 35.303
section on water quality permits. TNRCC will only use emergency orders
to provide authorization for bypasses which meet the conditions of 40
CFR 122.41. Any other use of emergency or temporary orders would be
outside the scope of an approved program.
The comments may have been the result of concerns related to
provisions in the proposed regulations, which provide TNRCC authority
in other programs, to ``* * * by these orders issue temporary permits
or temporarily suspend or amend permit conditions.'' Also, in the past,
temporary and emergency orders have been used, or proposed for use, in
the pre-TPDES State water quality permitting program for purposes such
as an emergency order authorizing discharge of contaminated non-process
wastewater at pollutant levels exceeding permit limitations from an
ammonium phosphate and ammonium thiosulfate fertilizer manufacturing
plant in Pasadena (TNRCC Docket No. 98-0320-IWD); and a temporary order
authorizing the discharge of storm water associated with industrial
activity from a steel manufacturing and fabrication facility in Morris
County (TNRCC Docket No. 97-0746-IWD). As a result of the specific
restrictions in 30 TAC 35.303 that become effective upon TPDES program
authorization, TNRCC is aware that its authority to issue emergency and
temporary orders cannot be used under the TPDES program in all
situations allowable under the pre-TPDES State permitting program.
While TNRCC has used temporary and emergency orders in the past to
authorized discharges in ways that could not be allowed under the NPDES
program, EPA and TNRCC agree that procedures under the new TPDES
program must be consistent with federal requirements. EPA therefore
believes that the existing rules and finalization of the proposed
rules, and use of temporary and emergency orders by TNRCC in the
context of the TPDES program will be consistent with the CWA.
With regard to the comment's expressed concerns regarding the 40
CFR 123.29 (and CWA Sec. 402(a)(5)) prohibition on a State issuing a
permit when EPA objects, EPA would like to point out that emergency
orders authorizing bypasses of TPDES facilities will not be permits,
but temporary emergency exceptions to the enforcement of some TPDES
permit conditions. EPA agrees that the State may not issue a TPDES
permit over the objection of EPA, but as discussed above, TNRCC will
not have the authority to issue permit-type discharge authorizations
via emergency or temporary orders under the TPDES program.
49. Issue: Identification of Discharges Not Under TNRCC Jurisdiction
One comment stated that TNRCC must provide identification of
discharges not in TNRCC jurisdiction. The comment insisted that TNRCC
list all permitted facilities which EPA permits but the State does not,
and further explain why each such facility is not permitted under
TNRCC's program. It was stated that this information is necessary to
understand the division of jurisdiction between EPA and TNRCC with
respect to CAFO discharges, discharges from oil and gas related
industries, and radioactive waste.
Response: TNRCC is not required to provide such lists for approval
of the TPDES program, and in fact EPA believes the request to be
onerous and unnecessarily burdensome. The MOA clearly states which
Standard Industrial Classification (SIC) codes are not within the
regulatory authority of TNRCC (regulated by the Texas Railroad
Commission). As previously stated, neither EPA nor TNRCC is aware, at
this time, of a CAFO facility which is not subject to TNRCC authority.
Additionally, EPA has very limited authority over radioactive wastes
under NPDES. TNRCC has at least the same authority to regulate those
wastes now addressed in the NPDES permits. TNRCC's authority in this
area is discussed in the MOA and in Chapter II, page 2-5, of the TPDES
application. EPA believes TNRCC's authority over CAFOs, oil and gas
facilities and radioactive waste discharges is adequately described. In
order to ensure that permittees are not confused about their NPDES
regulatory authority after this authorization, EPA is providing
separate notice by letter to the regulated facilities affected by this
authorization, notifying each of its status under either EPA or
transfer to TNRCC authority. EPA does not believe there is any matter
of division of authority that must be resolved before TNRCC can be
approved.
50. Issue: TNRCC Using EPA Guidance and Policy Only to Extent it Does
Not Conflict With State Law or Policy
One comment expressed concern that Section III.A.7 of the MOA
states that ``TNRCC will utilize EPA national and regional policies and
guidance to the extent there is no conflict with Texas statutes, a
specific State policy, or guidance adopted by TNRCC.'' The comment
stated that this was backwards in that Texas was required to
demonstrate equivalency with the federal requirements.
Response: Since policies and guidance are not legal requirements,
TNRCC's is not bound to follow them exactly. For example, EPA has a
policy that the application requirements for large and medium municipal
separate storm sewer systems contained in 40 CFR 122.26(d) were
intended to apply only to first-time permit issuance, and less
information is required for permit re-issuance. While TNRCC will be
following this EPA policy, if State law separately and specifically
requires all this information, TNRCC could not legally ignore State law
simply to follow an EPA policy. A State's right to have requirements
more stringent or extensive than those of in the federal NPDES program
is recognized in 40 CFR 123.1(i).
51. Issue: TNRCC Authority To Assume Existing NPDES Permits
One comment indicated that TNRCC had no authority to assume or
enforce EPA's permits and particularly had no authority to adopt or
enforce an EPA-issued general permit that did not limit
[[Page 51182]]
discharges to the 500,000 gallons per day limit imposed on TPDES
general permits.
Response: 30 TAC 305.533 specifically provides for the State to
adopt EPA-issued permits and pretreatment programs upon assumption of
the TPDES permit program. This conforms with common practice in the
NPDES State authorization process for a State and EPA to make
arrangements in the MOA for the State to assume responsibility for EPA-
issued permits. (See 40 CFR 123).
EPA does agree that the current limitations on maximum discharges
that can be authorized under a general permit issued by TNRCC could
affect the manner in which NPDES general permits transferred to the
State for administration will be handled at their expiration. TNRCC
will be notifying dischargers authorized under the EPA-issued general
permits it assumes that their authorization to discharge in excess of
500,000 gallons per day will not be available under the replacement
TPDES general permit, when it is issued, and they will need to apply
for coverage under an individual permit should they need authorization
for discharges over that amount. The general permits with the most
potential to be authorizing discharges exceeding 500,000 gallons per
day are the storm water general permits that EPA will be administering
until they expire (or earlier if replaced by a TPDES permit). As
discussed in responses to comments on program resources for the storm
water program, TNRCC has requested the additional resources to
administer the storm water program using individual permits due to the
500,000 gallons per day limitation on its authority regarding general
permits.
52. Issue: Appropriateness of EPA's Completeness Determination
Several comments asserted that additional information provided in
comments submitted by TNRCC on July 27, 1998, indicate that the TPDES
application was not complete at the time of EPA's completeness
determination on May 7, 1998.
Response: Contrary to the assertion of these particular comments,
EPA does not view the supplemental detail provided by the State to call
into question the completeness of the State's application. There is a
distinction between the ``completeness'' of the application and the
``approvability'' of the application. On May 7, 1998, the Agency
determined that Texas' February 5, 1998 program approval request (as
supplemented by additional information received on February 12, March
16, April 15, and May 4), constituted a complete package under 40 CFR
123.21, i.e., one containing all the element necessary for EPA to make
a decision on approvability. That package included a chapter on
resources to run the program (Chapter 7), with numbers of State
employees and funds that would be devoted to the running of the
program. Thus, there was information on resources, but members of the
public (and then EPA) asked for additional detail on the source of
these funding resources and the precise use of personnel so that a more
informed decision could be made about the sufficiency of those
resources--the approvability question.
The structure of the federal regulations themselves makes clear
that the completeness determination is distinct from the approvability
determination. The regulations first require a decision as to whether
or not a package has been received that includes all required elements
(the Governor's letter, program description, Attorney General's
statement, applicable State laws and regulations, etc.), as required at
40 CFR 123.21(a). Once EPA decides that the State Program submission is
complete, the statutory review period ``for formal EPA review of a
proposed State Program under CWA'' shall be deemed to have begun (40
CFR 123.21(b)(1)). EPA then embarks on a second decision as to whether
the complete package should be approved. This distinction between the
completeness determination and the approvability determination is also
discussed in EPA guidance.
The regulations go on to provide that if, during the statutory
review period, there is a ``material change'' in a package previously
determined to be complete, then the statutory review period shall begin
again upon receipt of the revised information (40 CFR 123.21(c)). This
is consistent with generally accepted principles of notice-and-comment
rulemaking. See Section 553(b)-(d) of the Administrative Procedure Act,
5 U.S.C.A. Sec. 553(b)-(d); Paralyzed Veterans of America v. West, 138
F.3d 1434 (1988); Asiana Airlines v. FAA, 328 US App. D.C. 237, 134
F.3d 393 (1988); National Electric Mfrs. Assn. v. EPA, 321 US App. D.C.
319, 99 F.3d 1170 (1996); Fertilizer Inst. v. US EPA, 290 US App. D.C.
184, 935 F2d 1303 (1991). However, EPA does not view the clarifications
submitted by Texas as constituting a material change in the
application. The additional detail provided was merely corroborative of
the original application--the number of persons assigned to the
proposed TPDES program did not change, and the amount of funding did
not change. The dollars specified in the tables are different, but only
to reflect changes made by TNRCC (unrelated to TPDES) in initiating
career ladders, etc. EPA and the public were simply afforded a deeper
understanding of the direction and management of those resources by the
applicant State agency.
53. Issue: Appropriateness of Basing Approval Decision on Information
Received During the Public Comment Period
One comment argued that ``EPA must make its authorization decision
on the materials in the application, not on some new information
submitted by TNRCC after the comment period has begun.''
Response: EPA does not agree. On its face, the comment appears to
suggest that EPA is limited in its consideration to only the
application, and may not consider any information that came in during
the comment period; such a reading would negate the purpose of the
comment period and cannot be correct. Further, it is not correct that
EPA can consider the comments of all members of the public other than
the State. The State is perhaps the most directly affected member of
the public on this application, and has a great deal of information and
insight into the application package that might be helpful to EPA in
reaching a decision and avoiding erroneous interpretations (especially
of TNRCC statements); EPA believes strongly that the State, like every
other part of the public, is welcome to file comments on this notice of
a proposed program. Indeed, here--as in almost every such case--the
Agency specifically asked the State and other interested parties to
comment on the many issues at stake in the approval
decision.8
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\8\ See, e.g., 63 FR at 33662 (``EPA will consider all comments
on the TPDES program and/or its approval in its decision''); 63 FR
at 33664 (``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 * * *.'').
---------------------------------------------------------------------------
If, as the comment suggests, the receipt of mere clarifying
comments (like those provided by the TNRCC) act to require the
restarting of the statutory review period and a new 45-day public
comment period, then the Agency and the public would be faced with a
never-ending do-loop of notice and comment periods. As the courts have
recognized in the context of notice-and-comment rulemakings, an agency
must be able to learn from the comments it receives without facing the
peril of starting a new round of comment. International
[[Page 51183]]
Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 n. 51 (D.C. Cir. 1973);
City of Stoughton, Wis. v. U.S. EPA, 858 F.2d 747, 753 (D.C. Cir.
1988). Here, the Agency concluded that the clarifying information was
not a material change in the application; however, because the Agency
had alerted the public that the additional details might be important
to the final decision, EPA did provide interested parties an additional
opportunity to provide comment to the Agency on that information.
Whereas a 45-day comment period had been provided for public review of
the entire 4106-page application, members of the public had up to 27
days (for those at the public hearing) or up to 14 days (those notified
only by mail) in which to submit comments on the 20 pages of detail
provided by the State. EPA believes that this procedure gave all
interested parties a fair and ample opportunity to review the State's
clarifying information on resources.
54. Issue: Use of Surface Waters as Treatment Units Under State Law
Several comments contend that EPA should disapprove the TPDES
program because the universe of surface waters protected by Texas law
is allegedly narrower than the universe protected by CWA. According to
these comments, TNRCC allows some operators to use impoundments of
naturally occurring waters and isolated waters (e.g., playa lakes for
waste treatment purposes). They contend that the CWA prohibits such
uses of ``waters of the United States'' and that Texas's permitting
practices allow dischargers to avoid imposition of appropriate
regulatory controls. They claim EPA should require TNRCC to adopt
enforceable regulations prohibiting the use of waters of the United
States for waste treatment systems and procedures for identifying and
correcting its past errors in allowing such use; several specific
examples of such alleged errors were provided.
Response: As a practical matter, all NPDES permitting agencies must
distinguish between waste treatment systems and protected waters.
Otherwise, they could not identify the physical location at which
effluent limitations apply. For this reason, EPA's definition of
``waters of the United States'' at 40 CFR 122.2 excludes ``waste
treatment systems'' even though some of those systems have
characteristics similar to protected waters. With one exception
identified below, the comment's description of TNRCC's regulatory
practices appears consistent with that exclusion.
The comment incorrectly assumes CWA affirmatively prohibits
conversion of waters of the United States to waste treatment systems,
perhaps because a portion of 40 CFR 122.2, as codified, appears to
prohibit such conversions. That portion of the regulation has been long
suspended. See 45 FR 48680 (July 21, 1980). Currently, nothing in CWA
Sec. 402 or EPA's implementing regulations per se prohibits using
impounded portions of naturally occurring surface waters as waste
treatment systems or, as sometimes occurs, using an entire isolated
water body as a waste treatment system. Construction of improvements to
convert waters of the United States to waste treatment systems
frequently requires an authorizing permit issued under CWA Sec. 404,
however, and may also be subject to regulation under State or local
laws, such as TWC Chapter 11 prohibition on impoundment or diversion of
State waters unless permitted.
EPA has promulgated no regulations and little guidance on
distinguishing waste treatment systems from waters of the United
States. Whether or not a particular discharge is to a waste treatment
system or a water of the United States may occasionally thus raise
issues for resolution in permit or enforcement actions under NPDES
programs. In In re Borden Inc., Colonial Sugars, 1 EAB 895, 908-912,
NPDES Appeal No. 83-8 (September 25, 1984), for instance, EPA rejected
a discharger's claim that an unimpounded portion of a swamp was a
``waste treatment system'' in a permitting action, holding that
segregation of waste from the surrounding environment during treatment
was an indispensable condition for waste treatment. TNRCC has a
definition of waste treatment system in 30 TAC Chapter 307. EPA has no
reason to believe TNRCC's lack of detailed guidance on waste treatment
systems will render it unable to resolve such issues in TPDES permit
actions.
EPA acknowledges that difficult issues may arise from application
of the waste treatment system exclusion to playa lakes (a.k.a.
``playas'') under both federal and State law. In their natural state,
playas are frequently ephemeral and hydrologically separated from other
surface waters. Under the CWA, isolated intrastate waters like playas
are ``waters of the United States'' only if their ``use, degradation,
or destruction could affect foreign,'' a factor which renders federal
jurisdiction over them case-specific (40 CFR 122.2). Many playas
possess the requisite commerce nexus, but those that lack it are not
generally subject to regulation under the CWA. Moreover, an entire
playa which would otherwise be a water of the United States may, under
some circumstances, be considered a waste treatment system, rendering
discharges to that playa beyond the ambit of CWA Sec. 301(a) (but
sometimes subjecting them to regulation under other authority, e.g.,
the Resource Conservation and Recovery Act). Determining whether a
specific playa lake is a water of the United States or a waste
treatment system is thus a highly case-specific undertaking requiring
substantial judgment on the part of a permitting or enforcement
authority. See, e.g., 58 FR 7610, 7620-7621 (February 8, 1993).
As pointed out in the comment, there was a time when Texas viewed
playas as privately owned waters not subject to regulation under TWC,
even though the definition of ``waters in the State'' at TWC
Sec. 26.001 and ``Surface water in the state'' at 30 TAC 307.2(40) were
(and are) plainly broad enough to encompass isolated waters. Since
1990, however, the State has interpreted that statutory definition as
encompassing playas. Because Texas requires no interstate or foreign
commerce nexus, its assertion of permit jurisdiction over playas is
arguably broader than CWA's. Its current ``Playa Lake Policy
Statement'' (Appendix 3-E of the Program Approval Request), moreover
suggests TNRCC will not regard ``new discharges of industrial and
municipal wastewater to playa lakes not previously authorized to be
used as wastewater treatment or retention facilities before July 10,
1991'' as discharges to waste treatment systems, a factor which
arguably renders the State's policy more protective of the ecological
values and functions of natural playas than CWA and EPA regulations.
In one somewhat limited situation, however, TNRCC may be able to
afford less permit protection to playas than EPA. As pointed out by the
comment, TWC Sec. 26.048 prohibits TNRCC from regulating animal feeding
operation discharges to playas which commenced before the State
asserted jurisdiction over them, an apparent legislative attempt to
minimize potential disruption arising from changes in the State's
jurisdictional views. EPA considers such State laws in its own case-
specific decisions on whether or not a given playa is a waste treatment
system, but they are not necessarily a controlling factor. See 58 FR
7621. Hence, TNRCC may be statutorily prohibited from regulating some
animal feeding operation discharges to playas which EPA would find
subject to regulation under CWA. Section III.B.8 of the EPA/TNRCC MOA
addresses this potential problem, essentially providing that EPA will
continue to regulate
[[Page 51184]]
discharges from concentrated animal feeding operations to playa lakes
which are waters of the United States when TNRCC lacks jurisdiction to
apply the TPDES program to them. Regulation of such discharges is not a
part of the TNRCC program EPA has approved in accordance with CWA
Sec. 402(n)(3). The comment provided examples of specific situations in
which TNRCC has apparently applied a waste system treatment exclusion.
In this response, EPA Region 6 is not determining whether or not those
specific applications were consistent with CWA or TWC. They may warrant
further consideration in future TPDES actions, however.
55. Issue: Statutory Limitations on TPDES General Permits
Both the regulated community and public interest groups expressed
concerns over the impact of TNRCC's current lack of authority to issue
general permit authorizing more than 500,000 gallons per day. Those in
the regulated community were primarily concerned with the impact this
would have in effective and timely permitting of storm water and CAFO
discharges, which, depending on rainfall and size of a facility, could
easily require authorization for more than 500,000 gallons of runoff in
a single day. The lack of resources to write individual permits for
storm water discharges and larger CAFOs and the resulting impact on
TNRCC's other permitting activities was a major concern for public
interest groups. Other limitations on TNRCC's current general permit
authority, especially the requirement for 30 days advance notice of
intent to be covered by a TPDES general permit was a particular concern
for developers and the construction industry.
Response: EPA agrees that the current limitations on TNRCC's
general permit authority placed on it by statute could hamper effective
implementation of especially the storm water program. This is one of
the primary reasons that EPA agreed to retain administration of storm
water permits that it had already issued at least until they expire.
This will give Texas the time to choose how to best administer the
storm water permitting program. For example, Texas could choose to
provide TNRCC with the resources that would be required to issue
individual permits to the large number of storm water discharges in a
timely manner. Alternatively, Texas could choose to change the statutes
limiting TNRCC's general permit authority; creating the option to
reduce the resources that TNRCC would need for the large number of
storm water discharges by allowing the use of the typically more
efficient and faster general permit mechanisms.
While EPA prefers to handle storm water discharges with general
permits, Texas is not required to do so, provided all discharges are
regulated one way or the other. Once Texas has assumed administration
of the NPDES program, it is required to fully implement and adequately
fund the approved program. Texas has made this commitment in Section
III.B.1. of the MOA which states: ``It is recognized that it is the
TNRCC's responsibility after program approval to run and manage the
TPDES, Pretreatment, and Sewage Sludge Programs with or without the
assistance of federal funding.'' So long as these objectives are fully
met, EPA has no authority to tell Texas that it cannot choose to use
individual permits in lieu of general permits. Likewise, EPA cannot
preclude TNRCC from requiring a shorter (i.e., more restrictive) Notice
of Intent period for its general permits (see 40 CFR 123.1(i)(1)).
56. Issue: Failure to Require Texas To Acknowledge EPA Interpretations
of the Audit Privilege Act in its Application for NPDES Authorization
One comment asserted that EPA should have required TNRCC to
explicitly agree to EPA's interpretation of the Texas Audit privilege
act in its application for NPDES authorization.
Response: This comment does not make clear what EPA interpretations
of the Texas audit privilege act [Tex. Civ. Statute art. 4447cc (1988)]
the State must acknowledge in its NPDES authorization application.
Texas has submitted a Statement of Legal Authority for the Texas
National Pollutant Discharge Elimination System Program (including the
March 13, 1998, supplement) (Texas Legal Statement) and related program
implementation documents. These documents describe the content of the
Texas audit privilege act as well as the process by which EPA and the
State discussed needed changes to the 1995 Texas audit privilege act,
which were ultimately enacted by the Texas Legislature in 1997. The
Texas Legal Statement certifies that Texas law (including the audit
privilege act) provides the State with adequate authority to operate
the NPDES program, and EPA agrees that the state law can reasonably be
read as providing the State with such authority. Further, EPA can
correct any problems which may arise in the implementation of needed
authorities through its oversight role once an NPDES program is
authorized. Under federal law, as explained above, EPA can take
independent action to address any violations that are dealt with
inadequately by the State, and can reconsider its approval of any
program should the state prove unable to enforce federal requirements.
57. Issue: Improper Barrier to Criminal Enforcement/Investigations
One comment asserted that Texas law placed an improper barrier on
criminal enforcement and investigation.
Response: 40 CFR 123.27(a) and (b) require the State to have
specified authority to seek criminal remedies, including criminal
fines. The amended Texas law does not impose barriers to criminal
enforcement or impair the State's ability to use audit information in a
criminal investigation or proceeding. The 1995 Texas audit privilege
act was specifically amended in 1997 to limit application of the
privilege to ``civil or administrative proceedings,'' which cannot
reasonably be read as encompassing criminal investigations.
Furthermore, new section 9(b) of the law removes any limit on the
state's ability to review any information that is required to be made
available under federal or state law prior. Those requirements
encompass virtually all information that is relevant to program
operation, leaving the state with ample authority to conduct both civil
and criminal investigations without the encumbrance of a prior hearing
to determine whether or not the material can be viewed.
58. Issue: Improper Barrier to Emergency Orders/Injunctive Relief
One comment asserted that Texas law established an improper barrier
to emergency orders and injunctive relief.
Response: 40 CFR 123.27(a) requires the State to have the authority
to restrain immediately unauthorized activities which are endangering
or causing damage to public health or the environment and to seek in
court to enjoin any threatened or continuing violation of any program
requirement. Neither the original 1995 Texas law nor the 1997
amendments have any impact on the State's ability to issue emergency
orders or obtain injunctive relief. Section 10 of the law provides
immunity from administrative and civil penalties, and the definition of
``penalty'' in section 3(a) excludes the concept of injunctive
authority. Furthermore, section 10(b) does not extend immunity to
situations which pose an imminent and substantial risk of serious
injury or harm to human health or the environment, as provided. As
noted above, Texas can obtain access to all information required to be
made available.
[[Page 51185]]
59. Issue: Limits on TNRCC's Ability to Review of Certain Audit
Documents (No Authority to Copy or Use Information)
One comment asserted that the Texas Audit privilege act improperly
limited the ability of TNRCC to copy or use information in audit
documents.
Response: Section 402(b) of the Clean Water Act, 33 U.S.C. 1342(b),
requires the State to have the authority to inspect, monitor, enter,
and require reports to the same extent as EPA under section 308 of the
Clean Water Act, 33 U.S.C. 1318. See also 40 CFR 123.26. Section
8(a)(1) of Texas's law provides that privilege does not apply to
``information required by a regulatory agency to be collected,
developed, maintained, or reported under a federal or state
environmental * * * law.'' This exclusion applies to information,
including data, required to be collected, developed, maintained, or
reported to the State or the public. Section 9(b) of the Texas statute
also gives the State the opportunity ``to review information that is
required to be available under a specific state or federal law * * *''
The review does not waive the existing privilege for this information.
The Texas law, however, also contains relevant constraints on this
narrow privilege. Section 7(a)(3) makes the privilege unavailable where
``appropriate efforts to achieve compliance with the law were not
promptly initiated and pursued with reasonable diligence after
discovery of noncompliance'' so that access is provided to information
needed to verify such compliance. Section 5(d) also allows persons who
participate in the audit and observe physical events of noncompliance
to testify about those events.
Thus, in general under the Texas law, the State may review, obtain,
and use required information. In limited circumstances, however, where
the information is not required to be collected, developed, maintained,
or reported, but is otherwise required to be made available, the State
may still obtain access to that information.
60. Issue: Improper Barrier To Access Evidence To Determine Whether
Violations Have Been Corrected
One comment asserted that the Texas Audit privilege act placed
improper barriers to accessing evidence to determine whether violations
discovered during a self-audit had been corrected.
Response: Section 402(b) of the Clean Water Act, 33 U.S.C. 1342(b),
requires the State to have the same authority to inspect, monitor,
enter, and require reports to the same extent as EPA under section 308
of the Clean Water Act, 33 U.S.C. 1318. In particular, section 308
provides EPA with broad authority to inspect, monitor, enter, and
require reports to verify compliance with Clean Water Act effluent
limitations and standards. In addition, 40 CFR 123.25(a) requires the
State to have the authority to issue and to administer the program
consistent with specific permitting requirements, including
requireme
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