April 30, 2021

Transfer of NPDES Authority for Oil and Gas Discharges to Texas—The Implementation Phase

Posted on April 30, 2021 by Sara Burgin

On January 15, 2021, the U.S. Environmental Protection Agency (EPA) transferred Clean Water Act Section 402 authority to Texas to issue National Pollutant Discharge Elimination System (NPDES) permits for discharges from oil and gas facilities in Texas. The transfer came in response to a delegation request from the State of Texas filed on October 12, 2020 pursuant to the requirements of House Bill 2771, 86th Texas Legislature, 2019 (HB2771). Upon delegation of NPDES authority to Texas, authority in Texas to issue state permits for discharges of pollutants from oil and gas activities to surface water passed from the Railroad Commission of Texas (RRC) to the Texas Commission on Environmental Quality (TCEQ).

One of the reasons behind the transfer of state authority to the TCEQ for discharges to surface waters upon NPDES delegation is that the structure of the TCEQ enables the agency to comply with federal regulatory requirements for NPDES delegation. Decision makers that approve or disapprove applications for NPDES permits must meet certain requirements related to sources of income prior to becoming a decision maker. Because RRC commissioners are elected by statewide vote, Texas could not commit in the application for NPDES delegation that future RRC commissioners would comply with the requirement. Since TCEQ commissioners are appointed by the governor, the requirements can be taken into account prior to their appointment.

Both the EPA and the RRC have now transported their files that authorize surface discharges related to existing NPDES permits and RRC permits, respectively, to the TCEQ. The TCEQ is in the process of cataloging the federal and state permits.

The next steps anticipated for most NPDES dischargers will be 1) changing the recipient for discharge monitoring reports (DMRs) and other reporting as directed by the EPA and TCEQ, 2) acclimating to new inspectors, and 3) identifying the earliest expiration date between the two permits to determine when the application for a combined TPDES permit is due. The transition, however, has caused issues for a few dischargers and some questions remain:

  • A small number of facilities had applications pending at EPA for renewal or amendment and renewal on January 15, 2021. Those dischargers, no matter the status of the application process, are required to restart their application process at the TCEQ on TCEQ application forms.
  • A few NPDES dischargers have open enforcement actions at the EPA. To the extent those remain open, under the Addendum to the Memorandum of Agreement between the EPA and the TCEQ dated January 15, 2021 (MOA), the EPA will retain compliance monitoring and enforcement authority over that NPDES permit until the action is closed as set out in the MOA. Although it seems clear under the MOA that permitting authority still transfers to the TCEQ for these dischargers even though the EPA retains compliance monitoring and enforcement authority, at the time of this writing the TCEQ has not confirmed that it intends to accept permitting authority until the enforcement action is closed. The EPA appears to believe that TCEQ now has permitting authority, as EPA has physically transferred the permits to the TCEQ, but, this remains an open issue.
  • Chapter 26 of the Texas Water Code requires protection of both ground water and surface water from pollutants. As a result, both the RRC and the TCEQ include liner requirements for storage of pollutants in units such as surface impoundments, pits, and sumps to protect the quality of groundwater. The RRC regulations provide for a separate permit (or permit by rule in some instances) for storage or treatment of wastewater from oil and gas activities in a surface impoundment or sump (known as a pit permit) from the permit previously issued by the RRC for a surface discharge. Although HB2771 clearly transferred authority to the TCEQ to issue permits for discharge to surface water, the statute does not clearly indicate legislative intent to transfer authority for protection of groundwater from oil and gas waste from the RRC to the TCEQ. Thus, there may or may not have been an intention on the part of the Texas Legislature to require that those TPDES dischargers who use in-ground units as part of their treatment systems continue to need an RRC permit for the in-ground unit. If it is the case that TPDES dischargers with in-ground treatment units continue to need RRC authorization for those units, there should be no substantive implications because the facilities are already complying with RRC requirements. The only implication of the RRC’s retention of authority should be the minor inconvenience of needing to maintain a RRC pit permit (or comply with an RRC permit by rule) for the in-ground unit. Such inconvenience is insignificant compared to the benefit going forward of having combined federal and state authority to discharge to surface waters in one TCEQ-issued TPDES permit. As of this writing, however, the issue relating to in-ground units is not fully decided.

We are lucky in the State of Texas to have highly professional environmental staff and decision makers at both the TCEQ and RRC. Thus, we have confidence that these and other issues that may develop associated with the transfer of NPDES authority to Texas will be resolved in a well-reasoned manner. We are well on our way, but we are not there just yet.